I.General Consideration

Custody change standard is best interests of the child, changed circumstances alone do not justify a change of custody. —

Where the requested change in custody was not in the child’s best interests, it was unnecessary to determine whether there was a substantial change in circumstances, as the dispositive issue was best interests, not the alleged change in circumstances. Matthew P. v. Gail S., 354 P.3d 1044 (Alaska 2015).

Applicability of changed circumstances doctrine. —

The changed circumstances doctrine applies to modifications of stipulated child custody arrangements in effect for a significant period of time. S.N.E. v. R.L.B., 699 P.2d 875 (Alaska 1985).

Court, on own motion, can find change of circumstance in a child custody case. T.M.C. v. S.A.C., 858 P.2d 315 (Alaska 1993).

Creation of visitation schedule. —

Where parties did not have a schedule, setting a schedule was not a modification, and had the schedule conformed to the parties’ plan for a fifty-fifty split in custody, it would not have required a showing of changed circumstances; because the parents were unable to agree on the schedule, the court had the authority to establish a specific schedule, but it was an abuse of discretion to adopt a sixty-forty custody schedule where the parties continued to agree that fifty-fifty custody was in the child’s best interests. Havel v. Havel, 216 P.3d 1148 (Alaska 2009).

For modification of custody to be justified, two circumstances must correspond: (1) the noncustodial parent must bear the burden in the modification proceeding of establishing that a change in circumstances has occurred, and (2) the modification must be in the best interests of the child. Nichols v. Mandelin, 790 P.2d 1367 (Alaska 1990).

Evidence required for modification of visitation not sufficient to modify custody. —

Modification of a visitation schedule was not erroneous because the evidence supported modification of the time-sharing schedule set out in the parties’ agreement, but was not sufficient to support modification of custody. Martin v. Martin, 303 P.3d 421 (Alaska 2013).

Modification motion not barred by finality principle. —

Finality principle did not bar a mother from basing a custody modification motion on 1999 and 2004 domestic violence incidents, any new claims of domestic violence occurring between 2005 and 2007, or claims of domestic violence occurring after a December 2007 hearing because none of the undisputed or alleged incidents were addressed by the trial court in its custody determinations. McAlpine v. Pacarro, 262 P.3d 622 (Alaska 2011).

Degree of change required. —

The change of circumstances required to modify visitation is not as great as that required for a change in custody. Carter v. Brodrick, 816 P.2d 202 (Alaska 1991); Morino v. Swayman, 970 P.2d 426 (Alaska 1999).

Court order requiring change in procedure after two years. —

Court-ordered two-year adjustment period in which one parent would have primary custody and other parent would have liberal visitation rights, with parents to share custody equally on an alternating week basis after two years, was not automatic modification of custody not based on statutorily mandated factors for a change in custody. Deininger v. Deininger, 835 P.2d 449 (Alaska 1992).

Formalization of custodial or visitation arrangements. —

Informal or de facto modifications of custodial or visitation arrangements should be formalized, since child support amounts and the number of visitation days allotted to the non-custodial parent are interdependent under Alaska Civ. R. 90.3(a) and (b). Morino v. Swayman, 970 P.2d 426 (Alaska 1999).

Actions by a custodial parent that substantially interfere with the noncustodial parent’s visitation rights are sufficient to constitute a change in circumstances, which may justify and require a modification of the visitation order if such modification is in the best interest of the child. Hermosillo v. Hermosillo, 797 P.2d 1206 (Alaska 1990).

Applied in

Cusack v. Cusack, 202 P.3d 1156 (Alaska 2009).

Quoted in

Jenkins v. Handel, 10 P.3d 586 (Alaska 2000); Stephanie W. v. Maxwell V., 274 P.3d 1185 (Alaska 2012); Bruce H. v. Jennifer L., 407 P.3d 432 (Alaska 2017); Edna K. v. Jeb S., 467 P.3d 1046 (Alaska 2020).

Cited in

Maxwell v. Maxwell, 37 P.3d 424 (Alaska 2001); Morris v. Horn, 219 P.3d 198 (Alaska 2009).

II.Change in Circumstances

Burden of proving substantial change in circumstances is on moving parent. S.N.E. v. R.L.B., 699 P.2d 875 (Alaska 1985); Garding v. Garding, 767 P.2d 183 (Alaska 1989); House v. House, 779 P.2d 1204 (Alaska 1989); Carter v. Brodrick, 816 P.2d 202 (Alaska 1991); Morino v. Swayman, 970 P.2d 426 (Alaska 1999).

Where there was evidence of a deteriorating relationship between the custodial mother and her teenage son in the months preceding the hearing, and where the teenager moved to his father’s home and refused to live with his mother, these changes clearly constituted a substantial change in circumstances that justified a review of the existing custody arrangement, and the superior court did not abuse its discretion in determining that the father had satisfied his burden of demonstrating a substantial change in circumstances. Valentino v. Cote, 3 P.3d 337 (Alaska 2000).

The moving parent for a modification in custody must show changes that affect the child’s welfare to overcome the court’s deep reluctance to shuttle children back and forth between parents. Schuyler v. Briner, 13 P.3d 738 (Alaska 2000).

When mother filed a motion for supervised child visitation 17 months after she was arrested for child abuse, the superior court properly found that her deferred sentencing agreement constituted a material change in circumstances because it ended the no contact order imposed while her criminal case was pending. Thomas v. Thomas, — P.3d — (Alaska July 27, 2011), (memorandum opinion).

In a child custody modification case, the superior court did not abuse its discretion in finding a material change of circumstances due to the mother’s arrests and conduct with her boyfriends that involved domestic violence and a gun. Heather W. v. Rudy R., 274 P.3d 478 (Alaska 2012).

Burden not carried. —

Father failed to carry the burden of proving a substantial change in circumstances, where, apart from the father’s attempt to gain sole custody, there was no evidence to support the superior court’s finding that the parties had become “unable to cooperate with each other to the extent necessary to make a joint custody arrangement work.” Garding v. Garding, 767 P.2d 183 (Alaska 1989).

Mother, who sought modification of child custody, failed to show a substantial change in circumstances; her allegations that the child’s grades had declined and that he was experiencing other problems in his father’s custody were not offered until her reply to the father’s response to her motion, and the mother was not entitled to a hearing. King v. Carey, 143 P.3d 972 (Alaska 2006).

Where mother had physical custody of daughter during the school year and father was granted summer visitation, he proposed that the parties reverse their custody arrangement and try a three-week experiment arrangement; where mother refused to formalize a custody change and insisted that the child be returned to her, superior court erred by granting father’s motion for modification because there was no substantial change of circumstances as required by subsection (a). McLane v. Paul, 189 P.3d 1039 (Alaska 2008).

Trial court was not required to analyze the best interests of the children because the mother failed to demonstrate that there had been a substantial change in circumstances that would have justified modifying the trial court’s custody and visitation order. The father’s relocation was specifically contemplated by the parties’ agreement. Susan M. v. Paul H., 362 P.3d 460 (Alaska 2015).

Superior court, following an award of child custody to the grandparents, did not err in denying the mother's motion to modify custody, without an evidentiary hearing, because the mother did not show a substantial change of circumstances affecting the child's best interests, as the mother's mental health assessment, four months sobriety from marijuana use and commitment to abstain from such use during the mother's then pregnancy, and relationship with her fiancé did not constitute a substantial change that affected the child's best interests. Abby D. v. Sue Y., 378 P.3d 388 (Alaska 2016).

Denying a mother's motion to modify custody of a daughter was not error where the father's new work schedule and family arrangements did not demonstrate any material negative impact on the child, thus, no substantial change in circumstances had occurred, and enforcing a prior order requiring that the daughter and mother have two uninterrupted calls per week was more appropriate than a change in custody. Moore v. McGillis, 408 P.3d 1196 (Alaska 2018).

Father's motion to modify child custody based on a substantial change in circumstances was properly denied because the changes identified were the outgrowth of the superior court's decision to allow the mother to move to Germany with the children, and it had anticipated that there might be setbacks as the children adapted to German schooling; the father did not address the concern that he was able to exert undue influence on the children; there was no abuse of discretion in denying a change of custody when a parent did not address concerns about the children potentially having been coached and influenced, making it impossible to determine their true preferences; and the eldest child's age alone did not constitute a change in circumstances. Bennett v. Bennett, — P.3d — (Alaska Sept. 25, 2019) (memorandum decision).

No substantial change in circumstances justifying a modification of custody was shown because (1) the parties did not agree to modification, (2) the children stated no such preference, (3) passage of time did not suffice, (4) the parties' inability to communicate was not a change, and (5) a change in a mother's child-care ability was not substantial. Berry v. Berry, — P.3d — (Alaska Dec. 11, 2019) (memorandum decision).

Parental preference. —

Superior court erred when it failed to apply the biological parent preference and determined that the father bore the usual burden of a non-custodial parent moving to modify the existing custody arrangement; Interpreting the order as permanent and dispositive of the father's parental preference was an abuse of discretion, the parental preference therefore did not drop out, and the grandmother continued to have the burden of proving by clear and convincing evidence that the preference should be overcome. Daves v. McKinley, 425 P.3d 92 (Alaska 2018).

Preliminary injunction. —

Superior court properly denied a divorced father’s request for a preliminary injunction to prevent the mother from leaving Alaska with their children; the father did not demonstrate a likelihood of success on the merits of his claim because Alaska law did not require a custodial parent to obtain permission from the non-custodial parent before moving out of state. The father still had the option of filing a motion to modify custody based on the change in circumstances because the superior court retained jurisdiction over the parties and their children despite the mother’s move. Misyura v. Misyura, 244 P.3d 519 (Alaska 2010).

Parties’ ability to communicate.—

A mother's claim that there had been a substantial change in circumstances warranting a change in legal custody was denied. The evidence was sufficient to conclude that the parties' ability to communicate, though not ideal, was not unusual in the circumstances and was adequate to support continued joint decision-making. Collier v. Harris, 377 P.3d 15 (Alaska 2016).

Effect of hostility between parents. —

Ordinarily, hostility and dispute between the parents, in and of itself, will not be considered a substantial change of circumstances unless the adverse impact on the child is extreme. The effect of hostility between the parents, however, may combine with other significant changes in circumstance to amount, in the aggregate, to a substantial change sufficient to warrant change of custody. Long v. Long, 816 P.2d 145 (Alaska 1991).

Finding of a complete breakdown in communication between the parties, making joint custody impracticable and injurious to the children’s overall well-being, was a sufficient change in circumstances to support modification of custody Riggs v. Coonradt, 335 P.3d 1103 (Alaska 2014).

Breach of custody agreement. —

Father’s breaches of the visitation provisions of the custody agreement constituted changed circumstances under the provisions of subsection (a). Kelly v. Joseph, 46 P.3d 1014 (Alaska 2002).

Inability to pay arrearage. —

Trial judge was not required to articulate her consideration of the father’s arrearage where the uncontradicted evidence supported a finding that the father’s arrearage was the result of an inability to pay; the father’s testimony was sufficient to support a finding that the exception in subsection (b) was met. Peterson v. Swarthout, 214 P.3d 332 (Alaska 2009).

Superior court’s failure to consider the arrearage, or the failure to articulate consideration of it, in modifying a child custody order was not an abuse of discretion where the mother testified that the father was very aware that she was not going to be current on her child support based on what she earned, and that suggested that she was behind in her support payments because she could not afford to make them. Wade R. v. Melinda R., — P.3d — (Alaska Oct. 8, 2014) (memorandum decision).

The custodial parent’s decision to leave the state with the children constitutes a substantial change in circumstances. House v. House, 779 P.2d 1204 (Alaska 1989); Pinneo v. Pinneo, 835 P.2d 1233 (Alaska 1992).

Anticipated relocation by parent constitutes changed circumstance. —

Where a parent filed for a custody determination on the basis of an anticipated move out of state, the anticipated move constituted a change in circumstances that required determination of custody following the move. Nelson v. Nelson, 263 P.3d 49 (Alaska 2011).

In-state move as change in circumstances. —

Custodial parent’s in-state move of a considerable distance, further complicated by the need to arrange supervision in accordance with a visitation order, constituted a change in circumstances sufficient to require an evidentiary hearing on modification of the order. Acevedo v. Liberty, 956 P.2d 455 (Alaska 1998).

Move to another state. —

Trial court did not clearly err when it found the mother's move to Hawaii was legitimate, as she credibly cited Hawaii's opportunities for a larger income, increased family stability, and a better environment. Judd v. Burns, 397 P.3d 331 (Alaska 2017).

Superior court did not abuse its discretion by failing to provide an alternative custody and visitation arrangement in the event the mother did not move because it could reasonably rely on the record to create a schedule that assumed the mother's move; the parties appeared to agree at trial that the mother was intent on moving to California, and the father doubted only her motive for moving. Darrell N. v. Jolina N., — P.3d — (Alaska May 13, 2020) (memorandum decision).

Trial court did not err in referring the mother’s custody motion to a master for an evidentiary hearing because the father’s move from Alaska with the parties’ child was a substantial change in circumstances. Womack v. Jones, — P.3d — (Alaska May 18, 2022) (memorandum decision).

Visitation agreement. —

Inability of parents to arrive at a mutually agreeable visitation arrangement in accordance with their original agreement represented a change in circumstances requiring reexamination of the physical custody arrangement. Siekawitch v. Siekawitch, 956 P.2d 447 (Alaska 1998).

Modifying nonparent’s custody. —

A parent moving to modify a nonparent’s court-ordered, permanent custody must show no less substantial a change in circumstances than a parent in a typical case. C.R.B. v. C.C., 959 P.2d 375 (Alaska 1998).

Changed circumstance established. —

Denying the mother's motion to modify her son's custody was error where the intervention of the previously absent biological father was a changed circumstance, and thus, the child's best interest should have been weighed to fashion an appropriate custody arrangement. Moore v. McGillis, 408 P.3d 1196 (Alaska 2018).

Superior court did not err in finding that there had been a substantial change in circumstances warranting a modification of the custody arrangement granting primary physical custody to the father because the mother had left the child unsupervised in her boyfriend's care; the boyfriend had a violent crime conviction; and the child was exposed to at least one act of domestic violence between the mother and her boyfriend. Adrianne C. v. Christopher D., — P.3d — (Alaska Jan. 13, 2021) (memorandum decision).

Substantial change in circumstances sufficient to support transfer of custody. —

Substantial change took place in the mother’s circumstances, justifying transfer of custody from the father to the mother, where there was evidence in the record regarding her overall maturation, her changed marital status, her full-time employment, and her sustained control of a former drinking problem. Nichols v. Mandelin, 790 P.2d 1367 (Alaska 1990).

Superior court did not abuse its discretion in finding a substantial change of circumstances warranting modification of child custody where it found that the mother filed a domestic violence petition and took other steps solely to prevent visitation, it carefully considered the best interests factors, its findings that primary custody should be awarded to the father was supported by the evidence, and the finding that the mother would not have facilitated a relationship between the child and father was supported by her past and ongoing behavior. Scott v. Gaines, — P.3d — (Alaska June 14, 2017) (memorandum decision).

Prima facie showing. —

Father made a prima facie showing that there had been a substantial change in circumstances since the 2016 custody order and was therefore entitled to an evidentiary hearing to determine whether there had in fact been a substantial change and, if so, whether custody should be modified. It was error to deny him that hearing. Beckwith v. Helm, — P.3d — (Alaska June 23, 2021) (memorandum decision).

Temporary change in circumstances. —

Trial court did not err when it denied the mother’s motion to modify custody without holding an evidentiary hearing, as the mother failed to make a prima facie case for a permanent modification of custody given that the change in circumstances was only temporary while the father trained for a new job. Hope P. v. Flynn G., 355 P.3d 559 (Alaska 2015).

Change in circumstances insufficient to support change of custody order. —

Trial court’s findings of changes of circumstances that referred to fact of mother’s having entered into a lesbian relationship, without a specific finding as to how such relationship adversely affected the child, were insufficient to support a change of custody order. S.N.E. v. R.L.B., 699 P.2d 875 (Alaska 1985).

In a change of custody hearing based on alleged change of circumstances, it is impermissible to rely on any real or imagined social stigma attaching to mother’s status as a lesbian. S.N.E. v. R.L.B., 699 P.2d 875 (Alaska 1985).

Where father had physical custody of the couple’s two sons for nine months, and the mother for three, and the mother had been granted regularly scheduled phone contact by the court, occasional missed calls did not constitute a change of circumstances. However, a pervasive pattern of missed calls, or calls where the children were distracted by television or video games, could constitute a change in circumstances. Further, changes in the father’s travel schedule, and occasional fighting heard in the background of calls, did not constitute reasons for a change in custody. Hunter v. Conwell, 276 P.3d 413 (Alaska 2012).

Superior court erred in awarding primary physical custody to a father because its findings regarding a substantial change in circumstances were in part clearly erroneous and were otherwise inadequate; the finding that the father obtained local employment did not appear to show a change in circumstances, the mother's poor communication with the father did not appear to be new, and the record provided weak support for a finding that the children's struggles in school were out of the ordinary. Jennifer L. v. Geoffrey G., — P.3d — (Alaska May 19, 2021) (memorandum decision).

Custody modification was remanded for further findings on the effect of changed circumstances, where the primary changed circumstance on which the father relied on appeal, i.e., the mother’s decision to leave the state, was never found by the trial court to negatively affect the child’s best interests or to merit a change in custody. Lee v. Cox, 790 P.2d 1359 (Alaska 1990).

Modification of visitation order. —

The change in circumstances required for modification of visitation rights need not rise to the level sufficient to warrant a change of custody. Hermosillo v. Hermosillo, 797 P.2d 1206 (Alaska 1990).

De facto change in visitation may be change of circumstances for the purpose of modifying decreed visitation, and de facto changes of a lengthy duration, especially where they are such as to change child support payments when given de jure status, should qualify. Morino v. Swayman, 970 P.2d 426 (Alaska 1999).

Evidence of alcohol abuse by the mother and her untreated mental health issues, including allegations of physical abuse by the mother, supported a finding of a substantial change in circumstances. Frackman v. Enzor, 327 P.3d 878 (Alaska 2014).

Parent's interference with children's therapy. —

Superior court did not abuse its discretion in entering an order modifying custody, which awarded sole legal and physical custody of her three children to the father and limited the mother to supervised visitation pending the children's full engagement in therapy, because the mother's interference with the children's therapy amounted to a change in circumstances, and the children's best interests were served by an award of sole legal and physical custody to the father while therapy took hold. It was within ther court's broad discretion to determine that the children's special need for psychotherapy was their predominant need and that the mother was not currently capable of supporting that need. Georgette S.B. v. Scott B., 433 P.3d 1165 (Alaska 2018).

Interference with visitation as change of circumstances. —

Superior court did not err in granting a mother’s motion for sole legal and primary physical custody because its factual finding supported the conclusion that the father substantially interfered with the mother’s visitation rights, which was a substantial change in circumstances justifying a modification of the existing custody arrangement; the father took the parties’ child out of the State without informing the mother and caused the mother to miss six visitations in a row. Graham R. v. Jane S., 334 P.3d 688 (Alaska 2014).

Although a mother's allegations that her parents interfered with her visitation rights to her child were serious and might have warranted a modification to the visitation order, the mother sought to modify custody, not visitation. Moreover, with the finding both that the mother was an unfit parent and that being in the mother's custody would be detrimental to child's welfare being present, the alleged interference with the mother's visitation rights did not justify a modification of custody. Abby D. v. Sue Y., 378 P.3d 388 (Alaska 2016).

III.Best Interests of Child

Judicial inquiry concerns child’s well-being. —

When a court determines the best interests of the child under the changed circumstances doctrine, the scope of judicial inquiry is limited to facts directly affecting the child’s well-being. S.N.E. v. R.L.B., 699 P.2d 875 (Alaska 1985).

In addition to finding a substantial change in circumstances, under subsection (a) a court must also consider whether a modification of custody was in the best interests of the child; a court determining the best interests of a child by considering nine statutory factors and a judge considering the best interests of a child must consider the findings made at the original hearing. Hamilton v. Hamilton, 42 P.3d 1107 (Alaska 2002).

Effect of parents’ hostility on child. —

Superior court properly modified the child custody award under subsection (a) where sufficient evidence showed that the father had attempted to manipulate the mother and that, as a result, their interpersonal relationship hurt the child; also, contrary to the father’s assertion, the superior court judge never referred to the father’s potential deployment with the U.S. Army in his findings on the stability and continuity of the child’s custody. Chesser v. Chesser-Witmer, 178 P.3d 1154 (Alaska 2008).

Trial court did not err in modifying a custody order and awarding the mother sole legal and primary physical custody because the father consistently confronted the mother and her live-in boyfriend about their relationship in front of the children; the father’s conduct toward, and negative comments about, the mother had a substantial negative impact on the children. Derrick S. v. Dawn S., — P.3d — (Alaska July 25, 2012), (memorandum opinion).

Out-of-state move. —

Where one parent moved to a distant locale, a six-month alternating physical custody arrangement was properly vacated on the basis that it disrupted the stability of the three-year-old child’s life and was not in the child’s best interests. West v. Lawson, 951 P.2d 1200 (Alaska 1998).

Court did not err in determining best interests of the children in a modification proceeding where the father planned to move out of state with the children, and it considered the children’s ties to their community, school, friends, and cultural environment in its determination. Barrett v. Alguire, 35 P.3d 1 (Alaska 2001).

Where a mother and father were given shared physical custody of their son after a divorce, and the mother later filed a motion to modify custody prior to her move to another state, the trial court did not abuse its discretion by awarding the mother primary physical custody, since the mother would not be working outside of the home and it was in the child’s best interests. Meier v. Cloud, 34 P.3d 1274 (Alaska 2001).

Granting a father’s motion to modify child custody was proper where the move out of state constituted a substantial change of circumstances and the court’s analysis of the best interest factors supported awarding the father custody of the children during the school year in Virginia. The superior court emphasized the quality of the schools and the extracurricular opportunities available in Virginia, along with the older child’s preference for Virginia. Sheffield v. Sheffield, 265 P.3d 332 (Alaska 2011).

Because the supreme court could determine whether the superior court abused its discretion in weighing the best interests factors, the case was remanded for renewed consideration of the challenged factors along with the symmetrical analysis; the superior court's analysis of the child's needs and the parents' capability and desire to meet them did not support its conclusion that it was in the child's best interests to remain in Alaska. Carpenter v. Blue, — P.3d — (Alaska Mar. 17, 2021) (memorandum decision).

It was improper to find that it was in a daughter's best interests to remain in Alaska with her father during the school year because the superior court failed to conduct the required symmetrical analysis; because the legitimacy of the mother's move was undisputed, the superior court was required to evaluate and symmetrically analyze the impact on the child of the move, but it failed to consider how stability in Alaska would be affected by the child's prolonged separation from her mother. Carpenter v. Blue, — P.3d — (Alaska Mar. 17, 2021) (memorandum decision).

Modification denied. —

Father’s custody modification motion was properly denied where the evidence supported the superior court’s best interests findings that the mother provided the children with a stable, satisfactory environment; the children became stressed during visitation with their father, and the children were very close and should live together. Worthington v. Worthington, — P.3d — (Alaska Aug. 24, 2011), (memorandum opinion).

Superior court did not err by denying the father’s motions for visitation and to modify child custody because he did not comply with the superior court’s order for a psychological evaluation — a necessary predicate for him to obtain face-to-face visitation or a change in custody. Further, he was not entitled to a change in custody based on his allegations that the mother interfered with his telephonic visitation; the mother acted within the terms of the applicable court order. Kurka v. Kurka, — P.3d — (Alaska Nov. 28, 2012), (memorandum opinion).

Modification justified. —

The conclusions that a substantial change in circumstances had occurred and that granting custody to the father was in the best interests of the children were adequately supported by the record. B.B. v. D.D., 18 P.3d 1210 (Alaska 2001).

Court properly modified child custody to a father where the mother interfered in the father’s relationship with the child, which demonstrated an unwillingness to allow an open and loving relationship, and the mother’s assisted living facility raised a concern about her ability to meet the child’s physical, emotional, mental, and social needs. Chesser-Witmer v. Chesser, 117 P.3d 711 (Alaska 2005).

Superior court properly concluded that it was in the child’s best interests to award sole legal and primary physical custody to the mother because its findings that the mother was better positioned to provide the child a stable home and had the better ability to care for her needs were not clearly erroneous. Graham R. v. Jane S., 334 P.3d 688 (Alaska 2014).

Superior court factored in a child’s preference to live with his mother under the best interest analysis, but did not give it a lot of weight in ordering that the father have custody; the child believed that the separation was harder on the mother and had more freedom with the mother than with the father. The superior court did not substitute findings in a separate custody proceeding for its findings in the present case. Wells v. Barile, 358 P.3d 583 (Alaska 2015).

Superior court did not err in modifying custody because its best interests findings were supported by the record; the evidence supported the superior court's findings that the first two factors set forth in set forth in AS 25.24.150(c)(1) and (2) favored the mother because she had made extensive efforts to address the child's mental health needs, and the father had not fully recognized or accepted the extent of the child's mental health issues. Lewis G. v. Cassie Y., 426 P.3d 1136 (Alaska 2018).

Superior court did not err in modifying custody because its best interests findings were supported by the record; the evidence supported the superior court's findings that the factors set forth in subsection (c) favored the mother in light of the child's fragile condition, profound mental health issues, and repeated hospitalizations because the record contained evidence of the child's hospital stays and treatment program. Lewis G. v. Cassie Y., 426 P.3d 1136 (Alaska 2018).

No abuse of discretion. —

Superior court did not abuse its discretion in determining that remaining in the father’s custody and moving with him to California would be in the children’s best interests. House v. House, 779 P.2d 1204 (Alaska 1989).

Mother failed to establish clear error or an abuse of discretion on the part of the superior court which decided to modify a previously-entered child custody award, and to award the custody of all four children to their father, where court supported its award with a brief analysis of each of the best interests factors set forth in AS 25.24.150(c)(1) -(9). Melendrez v. Melendrez, 143 P.3d 957 (Alaska 2006).

Neither the court’s order for modification of primary custody nor its order for supervised visitation constituted abuse of discretion where circumstances had changed and modification was clearly in the best interests of the children. R.M. v. S.G., 13 P.3d 747 (Alaska 2000).

Court properly found that it was in the children’s best interests for the mother to have sole legal custody because the court emphasized the mother’s track record as a primary caregiver, and it found that while the mother had promoted the children’s relationship with the father, the father undermined their relationship with the mother. William P. v. Taunya P., 258 P.3d 812 (Alaska 2011).

Application of best interest analysis. —

Majority of the parties’ final custody order was proper because the superior court properly considered the parties’ current circumstances and had explicitly noted that if and when the father returned to court, a best interests analysis would be applied. Jack C. v. Tally C., 284 P.3d 13 (Alaska 2012).

IV.Hearing

Right to hearing. —

A father’s right to a hearing on child custody was not satisfied by a hearing in a domestic violence proceeding at which an award of temporary custody was made, since the hearing was held without notice that permanent custody was at issue and it did not satisfy the hearing requirements for permanent custody modification. Lashbrook v. Lashbrook, 957 P.2d 326 (Alaska 1998).

Motion by a father for modification of a custody order to obtain custody of his daughter was really a motion for reconsideration of an order entered only two weeks earlier in a proceeding ostensibly focused on his son, but at which the court also considered, and rendered a ruling regarding, the daughter’s situation; in the absence of changed circumstances in those two weeks, the father had no right to a hearing. J.L.P. v. V.L.A., 30 P.3d 590 (Alaska 2001).

It was error to modify parties’ custody arrangement without holding a hearing or making factual findings; the superior court’s modification was not insignificant, and the parties’ original arrangement was not by court order, so the modification was an initial determination that required a hearing. Elliott v. Elliott, 129 P.3d 449 (Alaska 2006).

Trial court erred in failing to hold a hearing in response to a mother’s motion to modify child custody because the mother had demonstrated a prima facie case as to changed circumstances; the matter was remanded for the trial court to consider factors in this section to determine whether a change in custody or visitation was appropriate. Iverson v. Griffith, 180 P.3d 943 (Alaska 2008).

Trial court erred in denying a mother’s motion to modify a child custody order without conducting an evidentiary hearing; because a finding of domestic violence would establish changed circumstances, it was error to not address the mother’s allegations of child abuse or domestic violence. Barile v. Barile, 179 P.3d 944 (Alaska 2008).

When a mother alleged, among other things, verbal child abuse, the mother was entitled to a hearing on her motion to modify child custody. Hunter v. Conwell, 219 P.3d 191 (Alaska 2009).

Show-cause hearing. —

Father’s due process rights were violated by lack of notice that his custody rights were at issue at show-cause hearing which preceded entry of modification order; it was error to modify custody permanently on the basis of a show-cause hearing initiated to address one parent’s alleged attempt to frustrate the other parent’s visitation rights. Vinzant v. Elam, 977 P.2d 84 (Alaska 1999).

Court not obligated to hold hearing. —

The trial court is not required to hold a hearing whenever a parent moves for a change in visitation; thus, where no facts were disputed with respect to the child’s desire to see her father, and there were no factual issues that an evidentiary hearing would flesh out, a hearing was not required. Nelson v. Jones, 944 P.2d 476 (Alaska 1997), overruled in part, Angelica C. v. Jonathan C., 459 P.3d 1148 (Alaska 2020).

Trial judge’s decision to deny the mother’s motion for modification without a hearing was not an abuse of discretion where the mother’s concerns did not demonstrate that any changes in circumstances between the May 2007 hearing and the mother’s motion to modify custody were significant enough to justify relitigating the issue of custody; the mother’s motion did not demonstrate sustained noncooperation since the time of the previous hearing sufficient to suggest that the issue of legal custody should be relitigated. Peterson v. Swarthout, 214 P.3d 332 (Alaska 2009).

There was not a changed circumstance warranting a hearing on the modification of child custody because, as the superior court noted when it denied the father's first motion, completion of counseling was a condition for his visitation with his daughter and was not a changed circumstance justifying a change in custody; the father's allegations about the mother's mental health, even if proven, were not linked to any allegation that her mental health adversely affected their daughter's welfare; and the father's conclusory arguments about the current custody order's interference with the girl's exposure to Filipino language and culture were not sufficient, even if proven, to warrant a hearing. Raymond V. v. Danté E., — P.3d — (Alaska Aug. 5, 2020).

Right to hearing. —

Superior court acknowledged that a sex incident between daughter and her brother constituted a change in circumstances in the custody decree, but denied mother’s motion for modification without a hearing; superior court should have given mother an opportunity to show that the changed circumstances, considered in conjunction with other relevant facts bearing upon the children’s best interests, warranted modification of the custody decree. Andrea S. v. David R., 116 P.3d 589 (Alaska 2005).

Motion to modify custody not barred by res judicata or collateral estoppel. —

Superior court correctly ruled that a mother’s motion to modify custody was not barred by res judicata or collateral estoppel because the parties repeatedly and expressly declined to litigate issues of domestic violence or custody at the long-term domestic violence hearing, and the mother was not attempting to relitigate issues that had already been decided; neither domestic violence nor custody was actually litigated and necessarily decided in the protective order proceeding. Graham R. v. Jane S., 334 P.3d 688 (Alaska 2014).

Error in denying father evidentiary hearing. —

Superior court abused its discretion by denying the father an evidentiary hearing, where he made a prima facie showing that circumstances had changed in the years following orders terminating his visitation rights and restraining him from contact with his child. Carter v. Brodrick, 816 P.2d 202 (Alaska 1991).

Superior court erred in denying the husband's motion to modify custody without a hearing where at the time the order was entered, the husband did not have suitable accommodations for the children, he had since moved into and expanded a cabin to accommodate the children, and thus, he had alleged a substantial change in his living conditions sufficient to warrant a hearing under AS 25.20.110(a) . Fredrickson v. Hackett, 407 P.3d 480 (Alaska 2017).

Because a father alleged that a mother committed multiple acts of custodial interference, he should have been allowed the opportunity to prove his allegations of domestic violence at a hearing on his motion to modify custody and visitation. Daniel H. v. Amber G., — P.3d — (Alaska June 10, 2020) (memorandum decision).

Waiver of issue not raised in pleadings or at hearing. —

Although the trial court may have abused its discretion by failing to consider, before making its custody modification decision, the allegation that the father was delinquent in his child support payments, the wife waived this argument because she did not raise it either at the hearing or in a pre-trial pleading. Valentino v. Cote, 3 P.3d 337 (Alaska 2000).

A movant who demonstrates a change in circumstances is entitled to a hearing to determine whether the modified visitation would be in the child’s best interests, but trial court is not required to grant a hearing on a modification motion if it is plain that the facts alleged, even if established, would not warrant a change. Morino v. Swayman, 970 P.2d 426 (Alaska 1999).

Hearing required. —

The order modifying visitation was vacated where it contained no findings that a reduction of visitation was in the child’s best interest, and the reduction to one telephonic visit a month was ordered without giving incarcerated father an opportunity to be heard. A.H. v. P.B., 2 P.3d 627 (Alaska 2000).

Because the father's requested modification, seeking full legal and physical custody, and the trial court's order, giving the father primary custody, were both material and substantial alternations to the existing custody arrangements, due process required the trial court to hold a hearing before entering the custody modification so that the mother could have offered witnesses and other evidence and challenged the custody investigator's findings. Laura B. v. Wade B., 424 P.3d 315 (Alaska 2018).

Collateral references. —

Putative father’s right to visit illegitimate child, 15 ALR3d 887.

Right of jailed or imprisoned parent to visit from minor child, 15 ALR4th 1234.

Withholding visitation rights for failure to make alimony or support payments, 65 ALR4th 1155.

Post adoption visitation by natural parent, 78 ALR4th 218.

I.General Consideration

Annotator’s notes. —

Many of the cases cited in the notes below were decided under former AS 20.10.040 or AS 20.15.050.

Strict construction. —

The fundamental nature of parental rights requires strict construction of adoption statutes. In re Adoption of M., 611 P.2d 84 (Alaska 1980).

Statutes relating to adoption, being in derogation of the common law, must be strictly construed. Hammer v. Hammer, 16 Alaska 203 (D. Alaska 1956).

This section is modeled after a provision of the Uniform Adoption Act. In re Adoption of M., 611 P.2d 84 (Alaska 1980).

Duty of state as “parens patria.” —

See same catchline in note to AS 25.23.040 .

Consent of father required. —

Biological mother’s petition to adopt her son was denied because she already had a legal parent-child relationship. The child’s paternity was known, and the biological father did not consent to the termination of his parental rights. In re Adoption of Xavier K., 268 P.3d 274 (Alaska 2012), overruled in part, Angelica C. v. Jonathan C., 459 P.3d 1148 (Alaska 2020).

Superior court properly denied the adoptive parents’ petition to adopt a child because the father’s consent was required before they could adopt the child. The Indian Child Welfare Act did not preempt the state laws, the father legitimated the child, the father’s indigence existed despite at least some efforts to find work and improve his prospects through education, the adoptive parents did not prove that he lacked justifiable cause for his failure to pay child support, and there was no final order on the visitation issue that would support an appeal. Ebert v. Bruce L., 340 P.3d 1048 (Alaska 2014).

Willfulness element essential to denial of right to consent. —

Absent the element of willfulness, a parent does not lose the right to consent to adoption under this section. The underlying agreement between the natural mother and the potential adoptive parents demonstrated neither party anticipated the natural mother would support the child given the contemplated adoption, thus negating any element of willfulness on the mother’s part, which demonstrated that her failure to support the child was not without justifiable cause. The superior court did not err in its determination that, absent the mother’s consent to the petition for adoption, the petition should be dismissed. J.F. v. C.M.H. (In re J.M.F.), 881 P.2d 1116 (Alaska 1994).

Quoted in

In re Hannah L., 390 P.3d 1153 (Alaska 2017).

Stated in

Dennis O. v. Stephanie O., 393 P.3d 401 (Alaska 2017).

Cited in

In re C.L.T., 597 P.2d 518 (Alaska 1979); S.O. v. W.S., 643 P.2d 997 (Alaska 1982); C.T. v. J.S., 951 P.2d 1199 (Alaska 1998); B.F. v. D.M. (In re A.F.M.), 15 P.3d 258 (Alaska 2001); In re Adoption of S.K.L.H., 204 P.3d 320 (Alaska 2009); Osterkamp v. Stiles, 235 P.3d 193 (Alaska 2010).

II.When Consent Not Required

A.Generally

Legislative intent as to consent. —

The legislature intended that there should not be a conclusive termination of parental rights by adoption without either parental consent or a prior forfeiture of parental rights. Delgado v. Fawcett, 515 P.2d 710 (Alaska 1973).

Reason for consent provisions. —

Such provisions are designed to protect the natural rights of a parent to the custody, society, comfort, and services of the child. Delgado v. Fawcett, 515 P.2d 710 (Alaska 1973).

Right of parental consent not absolute. —

The legislature did not make the right of parental consent absolute and unqualified. Delgado v. Fawcett, 515 P.2d 710 (Alaska 1973).

Legislative judgment implicit in section. —

Implicit in this section is the legislative judgment that a parent who has manifested an inability or unwillingness to discharge the rights and duties of a parent shall be considered to have forfeited his right to obstruct an adoption. Delgado v. Fawcett, 515 P.2d 710 (Alaska 1973).

Consent of father not dispensed with on ground of child’s best interest. —

The supreme court rejected the contention that the required consent of the child’s father may be dispensed with if it is in the best interest of the child to do so. In re Adoption of H., 597 P.2d 513 (Alaska 1979).

The child’s best interests are not relevant to a determination of whether a natural parent’s consent can be dispensed with by the court. D.L.J. v. W.D.R., 635 P.2d 834 (Alaska 1981).

Conduct causing loss of right to consent. —

Parental conduct which causes loss of a parent’s right to consent to adoption must be wilful. R.N.T. v. J.R.G., 666 P.2d 1036 (Alaska 1983), overruled, In re J.J.J., 718 P.2d 948 (Alaska 1986).

Father's consent to an adoption was excused where the potential adoptive parents' testimony provided clear and convincing evidence that he had not paid child support for a period of one year, and his testimony, bank statements, and disparaging comments about the adoptive parents showed that the failure to pay was willful. Bruce L. v. Ebert, — P.3d — (Alaska July 25, 2018) (memorandum decision).

Custody involves a variety of parental rights and duties which vary according to the circumstances of the relationship of the child to the parent. Delgado v. Fawcett, 515 P.2d 710 (Alaska 1973).

“Custody” pertains not only to the parental control of the child, but is inseparably linked to the parent’s rights of access and companionship with his offspring. Delgado v. Fawcett, 515 P.2d 710 (Alaska 1973).

A divorced parent who has the right to visit his children must consent to the adoption of his children. Delgado v. Fawcett, 515 P.2d 710 (Alaska 1973); In re Adoption of N., 525 P.2d 520 (Alaska 1974).

The fact that a divorce decree awards custody to one parent, and “visitation rights” to the other may in no way reflect upon the noncustodial parent’s fitness. Delgado v. Fawcett, 515 P.2d 710 (Alaska 1973).

But a parent who has been awarded visitation may not forever obstruct adoption, regardless of his conduct and the best interests of the child. A divorce decree may be modified. Delgado v. Fawcett, 515 P.2d 710 (Alaska 1973).

If it is shown that, since the entry of judgment circumstances have changed so as to require a modification of the decree in the best interests of the children, a court may terminate parental rights of visitation. Delgado v. Fawcett, 515 P.2d 710 (Alaska 1973).

In order for a noncustodial parent to block a stepparent adoption, he or she must have maintained meaningful contact with a child, and must have provided regular payments of child support, unless prevented from doing so by circumstances beyond the noncustodial parent’s control; circumstances resulting from the noncustodial parent’s own conduct cannot excuse such a parent’s significant failure to provide support or maintain meaningful communication. In re J.J.J., 718 P.2d 948 (Alaska 1986).

The “period of at least one year” of significant nonsupport referred to in subsection (a)(2) does not have to immediately precede the adoption petition. In re J.J.J., 718 P.2d 948 (Alaska 1986).

Burden of proof. —

The adoptive parent has the burden of proving by clear and convincing evidence that the natural parent failed significantly to communicate with or to provide support for the child. D.L.J. v. W.D.R., 635 P.2d 834 (Alaska 1981); R.N.T. v. J.R.G., 666 P.2d 1036 (Alaska 1983), overruled, In re J.J.J., 718 P.2d 948 (Alaska 1986).

Because only the natural parent can explain why he or she failed to communicate with or to provide support for the child, fairness requires that he or she then bear the burden of coming forward with evidence of a justifiable cause for such omissions before justification becomes an issue. Thereafter, the burden of proving by clear and convincing evidence that the natural parent’s omissions were not justified rests with the adoptive parent. D.L.J. v. W.D.R., 635 P.2d 834 (Alaska 1981).

Standard as to disregarding parents’ refusal to consent to adoption. —

An adoption proceeding operates to replace a parent, while a child-in-need-of-aid proceeding operates to emancipate a child from an offending parent’s legal bonds. The different purposes of the two statutory mechanisms justify the use of different standards. A parent’s conduct, though not so dangerous as to warrant placement of the child with the state, may nonetheless justify disregarding the parents’ refusal to consent to adoption. Addison v. Danielson, 779 P.2d 1222 (Alaska 1989).

Sporadic partial payments do not preclude a finding of significant failure to provide child support. In re J.J.J., 718 P.2d 948 (Alaska 1986).

Justification. —

Evidence of subjective intent may be admitted to show what the “cause” for a parent’s course of action was, but whether the cause was justifiable must turn on the court’s determination of what grounds are objectively acceptable. D.L.J. v. W.D.R., 635 P.2d 834 (Alaska 1981).

Even though the custodial parent has the right to direct the child’s activities and to make decisions regarding the care of the child that are often beyond the absent parent’s control, this does not excuse the absent parent’s obligations to provide support for and meaningful contact with his or her child. D.L.J. v. W.D.R., 635 P.2d 834 (Alaska 1981).

Indigency. —

Paragraph (a)(2) of this section specifically states that indigency is a justifiable cause for failing to provide for care and support. R.N.T. v. J.R.G., 666 P.2d 1036 (Alaska 1983), overruled, In re J.J.J., 718 P.2d 948 (Alaska 1986).

The superior court erred in holding that indigency was not a legitimate justification for failure to support a child. In re K.L.J., 813 P.2d 276 (Alaska 1991).

Imprisonment. —

Neglect of parental duties caused by imprisonment is not necessarily wilful and thus does not inevitably result in the loss of a parent’s right to consent. R.N.T. v. J.R.G., 666 P.2d 1036 (Alaska 1983), overruled, In re J.J.J., 718 P.2d 948 (Alaska 1986).

Imprisonment does not necessarily preclude a parent from communicating with his children but, where it does, the failure to communicate is properly considered non-wilful and thus justifiable cause. R.N.T. v. J.R.G., 666 P.2d 1036 (Alaska 1983), overruled, In re J.J.J., 718 P.2d 948 (Alaska 1986).

Where the circumstances of the natural father’s incarceration and parole clearly prohibited him from communicating with his children, these circumstances acted as a justification for failure to establish meaningful communication with the children. R.N.T. v. J.R.G., 666 P.2d 1036 (Alaska 1983), overruled, In re J.J.J., 718 P.2d 948 (Alaska 1986).

Failure to communicate justified. —

Where the evidence of objective facts that justified the natural father’s failure to communicate with his daughter consisted of the testimony of the natural father and the mother that (1) he was told by friends, the mother, and the stepfather not to confuse the child by telling her that he and not her stepfather was her natural father; (2) he was told not to return to Alaska; (3) he consulted a child psychiatrist about his fear that his interference with the mother’s plans to wait to inform the child of true identity of her natural father would upset the child emotionally; (4) he remained informed about his daughter through friends in Anchorage; (5) he lived at a great distance from the child; and (6) meaningful communication with such a young child could not be accomplished by letter or telephone without the mother’s cooperation, the master’s determination that the natural father’s failure to communicate with his daughter was justified was not clearly erroneous. D.L.J. v. W.D.R., 635 P.2d 834 (Alaska 1981).

Where father absconded from Alabama with year-old son, whose whereabouts were unknown to mother (who remained in Alabama) for two years until father’s sister informed mother of child’s presence but did not offer to return child, mother’s year-long failure to communicate with child after she learned his presence in Alaska was justified, since written or telephonic communications would not have been “meaningful” under the circumstances and since mother was financially unable during that time to travel to Alaska or retain counsel therein to enforce an existing Alabama custody order. S.M.K. v. R.G.G., 702 P.2d 620 (Alaska 1985).

Superior court’s dismissal of a petition for adoption was affirmed where there was an adequate evidentiary basis for the superior court’s findings relating to the issue of the natural father’s justification for failing to communicate with his child: (1) That the natural father’s failure to communicate was justified since the child was too young (between two and three years of age) to talk on the telephone or understand gifts or letters from her father; (2) that the natural mother’s postponement of certain requested visitations and the natural father’s emotional difficulty in visiting with the new family justified his failure to communicate with the child; and (3) that the new family’s absence from Alaska for three months during the critical year period made it less reasonable for the natural father to exercise his visitation right. D.A. v. D.R.L., 727 P.2d 768 (Alaska 1986).

Failure to communicate not justified. —

Trial court did not clearly err in finding that the mother’s failure to communicate with her daughter was without justifiable cause, where she never tested her assumption that an attempt to communicate with the child would be blocked and, although she communicated regularly with the father’s grandmother, she never requested the child’s address. Addison v. Danielson, 779 P.2d 1222 (Alaska 1989).

Pursuant to subparagraph (a)(2)(A), a biological father waived his right to consent to the adoption of his daughter by her maternal grandparents because he did not meaningfully communicate with her for a one-year period; his incarceration did not justify his failure to communicate. David S. v. Jared H., 308 P.3d 862 (Alaska 2013).

Pursuant to AS 25.23.050(a)(2)(A) , a biological father waived his right to consent to the adoption of his daughter by her maternal grandparents because he did not meaningfully communicate with her for a one-year period; his incarceration did not justify his failure to communicate. David S. v. Jared H., 308 P.3d 862 (Alaska 2013).

Burden of proving lack of justifiable cause for failure to communicate not sustained. —

Adoptive parent did not prove by clear and convincing evidence that the mother lacked justifiable cause for her failure to communicate with the child, where it was apparent that the mother’s mental and emotional condition, and lack of legal sophistication, had hampered her efforts throughout the year in question to communicate with and to obtain visitation rights with the child. In re D.J.A., 793 P.2d 1033 (Alaska 1990).

Effect of parties’ remarriage on husband’s prior nonsupport. —

Parties’ three-year remarriage rendered previous periods of nonsupport irrelevent for the purpose of determining whether natural father had forfeited his right to consent. A remarriage obviously nullifies the custody and support provisions of the previous divorce decree. In re Adoption of J.B.K., 865 P.2d 737 (Alaska 1993).

Adoption resolution of Native American village. —

An adoption resolution of a Native American village was not entitled to comity or full faith and credit in the courts because it was obtained in violation of the natural father’s right to consent. Evans v. Native Village of Selawik IRA Council, 65 P.3d 58 (Alaska 2003).

Insufficient evidence to dispense with natural father’s consent under this section. —

Where biological father had filed an affidavit of paternity and had conducted himself as the father of the child, the master and the court did not err in holding that his consent was required. In re Adoption of H., 597 P.2d 513 (Alaska 1979).

Where appellant initially maintained close contact by letter and telephone for the period following the divorce and his son was brought to Alaska to visit him for the summer; appellant’s ex-wife and best friend began to live together and subsequently married; and on Easter, appellant personally brought Easter baskets, cards, and letters to his children at the home of his best friend and ex-wife and, the following week, his children spent the weekend with him; even though appellant did not visit with his children in the ensuing year, but communicated regularly with the children at Christmas and birthdays by sending presents, cards, and letters, appellant did not fail “significantly without justifiable cause . . . to communicate meaningfully” with his children. In re Adoption of M., 611 P.2d 84 (Alaska 1980).

Where, from the time of the divorce, for two years, appellant did not fail to meet his child support obligation, but that because of a period of unemployment he was able to send his ex-wife only a partial payment that she returned to him, resulting in appellant placing his support money in a savings account in trust for the children so constituted that the signatures of both him and his ex-wife would be necessary before moneys could be withdrawn; appellant did not fail “significantly without justifiable cause . . . to provide for the care and support” of his minor children as required by judicial decree. In re Adoption of M., 611 P.2d 84 (Alaska 1980).

Where evidence of the natural father’s failure to provide support for one year did not satisfy the strict requirements of subsection (a)(2), his consent to adoption was required. In re Adoption of A.F.M., 960 P.2d 602 (Alaska 1998).

Superior court properly dismissed the maternal aunt and uncle’s adoption petition because the record amply supported the determination that the father’s failure to communicate was not unreasonable or without justification, the record supported the determination that the father did not abandon the child for six months or more, and the father did not fail to support the child for one year or more where no support was requested. In re J.R.S., 505 P.3d 234 (Alaska 2022).

Unfitness of parent. —

The fact that the mother received custody and the father visitation rights does not indicate that the father was adjudged an unfit parent or that he forfeited his parental rights. Delgado v. Fawcett, 515 P.2d 710 (Alaska 1973); In re A.J.N., 525 P.2d 520 (Alaska 1974); In re K.S., 543 P.2d 1191 (Alaska 1975)(All of these cases were decided under former AS 20.10.040)

Res judicata. —

Where the superior court made a decision as to the requisite fact as required by law, which decision was made in a proceeding where petitioner was a party and had the opportunity to be heard, and where the jurisdictional question as to the fact was in issue, such decision was res judicata as to that issue and was not subject to collateral attack by petitioner in a habeas corpus proceeding. Holt v. Powell, 420 P.2d 468 (Alaska 1966).

The failure to keep a record of the adoption proceedings is a procedural matter which does not in any way relate to situations where a judgment would be void. Holt v. Powell, 420 P.2d 468 (Alaska 1966).

B.Abandonment

The test for abandonment is whether there is “conduct on the part of the parent which implies a conscious disregard of the obligations owed by a parent to the child, leading to the destruction of the parent-child relationship.” In re Adoption of N., 525 P.2d 520 (Alaska 1974).

Such test focuses on two questions — has the parent’s conduct evidenced a disregard for his parental obligations, and has that disregard led to the destruction of the parent-child relationship? In re Adoption of N., 525 P.2d 520 (Alaska 1974).

A finding of abandonment involves a two-pronged inquiry: There must first be a finding of conduct evidencing a conscious disregard of parental obligations; secondly, the court must find that such disregard has led to the destruction of the parent-child relationship. Adoption of C., 528 P.2d 788 (Alaska 1974).

The two elements of the test are interdependent; both must be established if there is to be legal abandonment. Adoption of C., 528 P.2d 788 (Alaska 1974).

Absent a sufficient finding of the requisite conduct, even a consideration of the best interests of the child and a breakdown of the parent-child relationship would be insufficient to support a finding of legal abandonment. Adoption of C., 528 P.2d 788 (Alaska 1974).

The mere fact that there is evidence of the relationship’s destruction is of no consequence if it cannot be established that there was parental conduct which caused it. Adoption of C., 528 P.2d 788 (Alaska 1974).

The best interests of the child are relevant to the latter question in the test for abandonment, because it is indicative of a breakdown of the parent-child relationship if the child’s best interests are promoted by legal severance of the relation. In re Adoption of N., 525 P.2d 520 (Alaska 1974).

But they may not always be directly relevant to the question of the parent’s disregard of his obligations. This part of the test can only be satisfied by proof that the parent’s conduct evidences a conscious disregard of his obligations. In re Adoption of N., 525 P.2d 520 (Alaska 1974); Adoption of C., 528 P.2d 788 (Alaska 1974).

Abandonment finding cannot be based solely on child’s best interests. —

The best interests of the child are a valid factor in deciding an “abandonment” allegation. However, an abandonment finding cannot be predicated solely on the best interests of the child. In re Adoption of N., 525 P.2d 520 (Alaska 1974); Adoption of C., 528 P.2d 788 (Alaska 1974).

Master’s finding. —

In a case in which a child’s father appealed a superior court’s decision that his consent was not required for the child’s adoption, the master’s finding that the father abandoned the child was amply supported by the record. In re Adoption of S.F., 340 P.3d 1045 (Alaska 2014).

Evidence relating solely to the question of what disposition may be in the child’s best interests — evidence pertinent primarily to an inquiry into the present vitality, strength and stability of the parent-child relationship — is ultimately inconsequential in the absence of proof of the requisite prior conduct. Adoption of C., 528 P.2d 788 (Alaska 1974).

Determination must be initially predicated on objective evidence. —

In deciding the question of abandonment the trial court must initially predicate its determination upon objective evidence of parental conduct indicating a conscious disregard of the parental role. Adoption of C., 528 P.2d 788 (Alaska 1974).

Failure to maintain contact with child for an extended period. —

When the grandmother was granted legal and physical custody of her granddaughter, the child’s mother failed to visit her for a period of one year, and did not telephone or write. The mother’s consent was not required for the grandmother’s adoption of the child because the mother had abandoned the child. The court properly focused on the mother’s conduct in determining that she consciously disregarded her parental role. In re Allison B., — P.3d — (Alaska Nov. 3, 2010), (memorandum opinion).

Conclusion of nonabandonment based solely upon evidence of the parent’s subjective intent not to abandon his responsibilities would be reversible error. Adoption of C., 528 P.2d 788 (Alaska 1974).

Father held not to have “abandoned” daughter and not unfit as parent. —

Where the father had consistently sought to enjoy his visitation rights only to be frustrated by obstructions placed in his way by the wife’s new husband, the father did not abandon his daughter. In re Adoption of N., 525 P.2d 520 (Alaska 1974).

Collateral references. —

Relinquishment of pa- rental claim to child-adoption proceeding, 10 Am. Jur. POF2d, pp. 635-668.

What constitutes abandonment or desertion of child by its parent or parents within purview of adoption laws, 35 ALR2d 662, 78 ALR3d 712.

Parent’s involuntary confinement, or failure to care for child as result thereof as permitting adoption without consent, 78 ALR3d 712.

Natural parent’s indigence as precluding finding that failure to support child waived requirement of consent to adoption — General principles, 82 ALR5th 443.

Natural parent’s indigence resulting from unemployment or underemployment as precluding finding that failure to support child waived requirement of consent to adoption, 83 ALR5th 375.

Natural parent’s indigence as precluding finding that failure to support child waived requirement of consent to adoption — Factors other than employment status, 84 ALR5th 191.

C.W. v. Dep't of Health & Soc. Servs., 23 P.3d 52 (Alaska 2001).

Cited in

Addison v. Danielson, 779 P.2d 1222 (Alaska 1989); Gilbert M. v. State, 139 P.3d 581 (Alaska 2006); State v. Zander B., 474 P.3d 1153 (Alaska 2020).

Collateral references. —

Inheritance from or through adoptive parent, 18 ALR2d 960.

Adoption of child as revoking a will, 24 ALR2d 1085.

Adoption as affecting right of inheritance through or from natural parent or other natural kin, 37 ALR2d 333.

Right of adopted child to inherit from kindred of adoptive parent, 43 ALR2d 1183.

Children of adopted child, or adopted children of natural child, as “lineal descendants” within provisions of inheritance, succession, or estate tax statutes respecting exemption and tax rates, 51 ALR2d 853.

Res judicata as applicable to decrees or judgments in adoption proceedings, 52 ALR2d 406.

Inheritance from or through adopted person, 52 ALR2d 1228.

Child adopted by another as beneficiary of action or settlement for wrongful death of natural parent, 67 ALR2d 745.

Law governing effect, with respect to inheritance, of foreign contract to adopt, 80 ALR2d 1128.

Adopted child as within class in testamentary gift, 86 A.L.R.2d 12.

Conflict of laws as to adoption, as affecting descent and distribution of decedent’s estate, 87 ALR2d 1240.

Who, other than natural or adopting parents, or heirs of latter, may collaterally attack adoption decree, 92 ALR2d 813.

Right of children of adopted child to inherit from adopting parent, 94 ALR2d 1200.

Action for death of adoptive parent, by or for benefit of adopted or equitably adopted child, 94 ALR2d 1237, 97 A.L.R.3d 347.

Statutory revocation of will by subsequent birth or adoption of child, 97 ALR2d 1044.

Right of adopted child to inherit from intestate natural grandparent, 60 ALR3d 631.

Adoption as precluding testamentary gift under natural relative’s will, 71 ALR4th 374.

Adopted child as within class named in deed or inter vivos trust instrument, 37 ALR5th 237.

Construction and application of §§ 202(d)(8)(D) and 202(d)(9)(B) of Social Security Act (42 USC § 402(d)(8)(D) and 402(d)(9)(B)) respecting award of child benefits to child legally adopted by individual within 24 months after individual has become entitled to disability or old age insurance benefits, 10 ALR Fed. 903.

Denial of social security benefits to adopted children who are neither natural children nor stepchildren of eligible individual and who do not meet dependency requirements, under § 202(d)(8) of the Social Security Act, as amended (42 USC § 402(d)(8)), 57 ALR Fed. 942.

I.General Consideration

Applicability. —

Based upon the father’s own concession that the facts in the case did not resemble a divorce, the divorce exception of this section did not apply; accordingly, award of fees to the mother pursuant to Alaska R. Civ. P. 82(b)(2) was not in error. McDonald v. Trihub, 173 P.3d 416 (Alaska 2007).

Determination of support for adult child. —

Rules of Civil Procedure 90.3 applied to the determination of required support during the period an unmarried 18-year-child was pursuing a high school diploma, as mandated by paragraph (a)(3). Sanders v. Sanders, 902 P.2d 310 (Alaska 1995).

Physicians’ bills for treating child. —

While a divorce suit was pending, an order of the court directing the husband to pay the wife a specified sum for the purpose of enabling her to satisfy the claims of physicians for their professional services in attending the couple’s child was justified by the second subdivision of this section. Leak v. Leak, 156 F. 474, 2 Alaska Fed. 815 (9th Cir. Alaska 1907).

Retroactive modification of child support. —

The superior court abused its discretion when it retroactively modified the interim child support order in the absence of extraordinary circumstances. Jones v. Jones, 666 P.2d 1031 (Alaska 1983).

Bad faith conduct. —

Superior court’s assessment of the parties’ relative economic circumstances had to be reconsidered on demand, but the court correctly considered the husband’s greater income and income-earning capacity; the superior court did not err in increasing the attorney’s fee award based on the husband’s bad-faith conduct and vexatious litigation. Heustess v. Kelley-Heustess, 259 P.3d 462 (Alaska 2011).

Order issued without hearing. —

While this section does not require a hearing before an order is issued, a father was afforded notice of the mother’s reasons for seeking a protective order and a full opportunity to question her about the basis for the sought-after order. Berry v. Berry, 277 P.3d 771 (Alaska 2012).

Prohibiting contact with former spouse. —

The superior court has jurisdiction, where appropriate, to enter a “no-contact” order prohibiting a party from making contact with his former spouse, in the context of a final decree of divorce. Siggelkow v. State, 731 P.2d 57 (Alaska 1987).

Prenuptial agreements. —

Signed prenuptial agreement did not preclude the trial court from awarding interim support, and its order requiring the husband to pay $5,000 per month in interim spousal support for 17 months was reasonable. Beal v. Beal, 88 P.3d 104 (Alaska 2004).

Interim spousal support award affirmed. —

Court's decision to award $5,000 a month in interim spousal support and not to credit the ex-husband for alleged overpayments of support was not an abuse of discretion because the court took into account the parties' needs and ability to pay, crafted its award to preserve - and ultimately sell - the marital home, and provided for the parties' reasonable and necessary living expenses during the pendency of the divorce; the ex-wife's $4,000 maintenance number included work needed to make the marital house marketable, utility costs, and support for her while working to maintain the property; and the husband acknowledged that making improvements to the house would cost more than merely maintaining the condition of the property. Brennan v. Brennan, 425 P.3d 99 (Alaska 2018).

Factors to consider in awarding interim spousal maintenance. —

An award of interim maintenance provides for reasonable and necessary living expenses while divorce litigation is pending and insures that neither spouse is disadvantaged in presenting claims. The primary factors to be considered in awarding interim spousal maintenance are the relative economic circumstances and needs of the parties, and the ability to pay the maintenance. Johnson v. Johnson, 836 P.2d 930 (Alaska 1992).

Specific findings required for interim spousal maintenance. —

Where record contained no findings in support of the interim spousal maintenance order entered by trial court judge, award was vacated and the issue remanded for specific findings. Johnson v. Johnson, 836 P.2d 930 (Alaska 1992).

Modification of interim spousal support orders. —

Because the trial court derived its authority to enter its interim order of spousal support under paragraph (a)(2), and given the inherently provisional nature of interim orders and the fact that subsection (a) does not prohibit modification, the discretionary regime set up by this statutory system provides the trial court with the discretion to modify interim spousal support orders. Edelman v. Edelman, 3 P.3d 348 (Alaska 2000).

Interim award offset against final distribution of marital estate. —

Trial court correctly offset a wife’s interim support and attorney fees awards from her portion of the marital estate; the wife had long been employed, retained significant earning capacity, and had substantial assets. Hanson v. Hanson, 125 P.3d 299 (Alaska 2005).

Court’s power to compel sale of property. —

Although the trial court has the authority to compel the sale of a divorcing couple’s property, this authority should be used sparingly; where no pressing reason exists to mandate a sale, court should rescind the transaction, and all parties, including the buyers, should be returned to their original positions. Watega v. Watega, 143 P.3d 658 (Alaska 2006).

Trial court’s order requiring the sale of the marital home prior to the final property decision was not supported by adequate findings; because the trial court made no findings and did not set out the calculations that led it to conclude that an interim sale was necessary, the Alaska Supreme Court could only guess as to why the court concluded that the pre-judgment sale of the residence would benefit the parties; and without the benefit of such findings the supreme court could not determine whether the exceptional circumstances required were present. Husseini v. Husseini, 230 P.3d 682 (Alaska 2010).

It was not error to grant a mother's motion for the pre-trial sale of a marital home because (1) the father was collaterally estopped from denying the father's conviction for indecent exposure to the parties' child, (2) no party lived in the home, and (3) there was no evidence that the mother would sell the home for an unreasonably low price. Jerry B. v. Sally B., 377 P.3d 916 (Alaska), modified, — P.3d — (Alaska 2016).

It was not error to grant a mother's motion for the pre-trial sale of a marital home because (1) the father was collaterally estopped from denying the father's conviction for indecent exposure to the parties' child, (2) no party lived in the home, and (3) there was no evidence that the mother would sell the home for an unreasonably low price. Jerry B. v. Sally B., 377 P.3d 916 (Alaska), modified, — P.3d — (Alaska 2016).

Applied in

Olsen v. Olsen, 5 Alaska 459 (D. Alaska 1916); Rostel v. Rostel, 622 P.2d 429 (Alaska 1981); Hinchey v. Hinchey, 625 P.2d 297 (Alaska 1981); Siggelkow v. Siggelkow, 643 P.2d 985 (Alaska 1982).

Quoted in

Lovell v. Lovell, 645 P.2d 151 (Alaska 1982); Dowling v. Dowling, 679 P.2d 480 (Alaska 1984); Lewis v. Lewis, 785 P.2d 550 (Alaska 1990); S.L. v. J.H., 883 P.2d 984 (Alaska 1994).

Cited in

Kimmons v. Heldt, 667 P.2d 1245 (Alaska 1983); Gerlach v. State, 699 P.2d 358 (Alaska Ct. App. 1985); L.L.M. v. P.M., 754 P.2d 262 (Alaska 1988); Brotherton v. Brotherton, 941 P.2d 1241 (Alaska 1997); Gallant v. Gallant, 945 P.2d 795 (Alaska 1997); Sanders v. Barth, 12 P.3d 766 (Alaska 2000); Fleegel v. Estate of Boyles, 61 P.3d 1267 (Alaska 2002); Edelman v. Edelman, 61 P.3d 1 (Alaska 2002); Morris v. Horn, 219 P.3d 198 (Alaska 2009); Collier v. Harris, 261 P.3d 397 (Alaska 2011); Martin v. Martin, 303 P.3d 421 (Alaska 2013).

II.Attorney Fees and Costs

Court’s power to compel sale of property. —

On remand from correction of two property division errors in a divorce case, it was proper to treat a motion for attorney’s fees as being governed by the “divorce exception” and AS 25.24.140(a)(1) , not Alaska R. Civ. P. 82. Johnson v. Johnson, 239 P.3d 393 (Alaska 2010).

Discretion of trial court. —

Whether to make any award pursuant to subsection (a)(1) is committed to the sound discretion of the trial court. Johnson v. Johnson, 564 P.2d 71 (Alaska 1977), cert. denied, 434 U.S. 1048, 98 S. Ct. 896, 54 L. Ed. 2d 800 (U.S. 1978).

Finding that a wife’s litigation strategy was unreasonable did not preclude the superior court from awarding her attorney fees and costs under paragraph (a)(1). Because the husband did not show that the wife’s conduct met the standard for vexatiousness, the superior court did not abuse its discretion in awarding fees based on the relative economic positions of the parties. McGrady v. McGrady, — P.3d — (Alaska Mar. 20, 2013), (memorandum opinion).

Proper award. —

Wife's attorney's fee award was not plain error because, (1) despite not specifically finding the parties economic circumstances when making the award, the court was fully aware of the parties' economic situations, which the court was not required to repeat, (2) the divorce exception did not apply to fee awards in post-settlement enforcement actions, and (3) the court's inherent equitable power to award fees in the interests of justice was properly exercised, despite a settlement agreement's provision requiring each party to pay his or her own attorney's fees, as a husband's filing of incomplete and inaccurate orders resulted in significant attorney's fees and costs for the wife, so that failing to require him to pay her reasonable fees would not have adequately protected the interests of justice. Pollard v. Pollard, — P.3d — (Alaska July 1, 2020) (memorandum decision).

In awarding attorney’s fees the court is limited to making an award to enable the other spouse to prosecute or defend “the action.” Cooper v. State, 638 P.2d 174 (Alaska 1981).

Paragraph (a)(1) does not apply to attorney’s fees on appeal. Hilliker v. Hilliker, 768 P.2d 115 (Alaska 1988).

Lesser earning spouse required to pay own attorney’s fees. —

Assuming that a husband possessed greater financial resources and greater earning capabilities, the wife’s resources and capabilities were sufficient enough that a court could reasonably expect her to pay her own attorney’s fees; and the Alaska supreme court affirmed the trial court’s order requiring the wife to do so where the wife had training in landscape architecture and experience in drafting, and there was testimony that those skills could earn her $18,000—$20,000 a year. H.P.A. v. S.C.A., 704 P.2d 205 (Alaska 1985); Davila v. Davila, 908 P.2d 1027 (Alaska 1995).

The court is only authorized to make an allowance for future expenses of the suit. Leak v. Leak, 156 F. 474, 2 Alaska Fed. 815 (9th Cir. Alaska 1907).

And cannot require husband to pay additional amount borrowed by wife for court costs. —

Where the court made an order directing the husband to pay the wife a specific amount for necessary expenses she might incur in preparation of her defense and the wife, without making further application to the court, borrowed money to cover additional costs, it was error to require the husband to pay this additional amount. Leak v. Leak, 156 F. 474, 2 Alaska Fed. 815 (9th Cir. Alaska 1907).

Legislative intent that attorney’s fees be allowable regardless of prevailing party. —

Paragraph (a)(1) of this section shows a legislative intent that attorney’s fees be allowable to the wife in a divorce action regardless of who is the prevailing party. Houger v. Houger, 449 P.2d 766 (Alaska 1969) (decided prior to 1990 amendment).

The fact that neither party prevailed is of no relevance to the trial court’s determination regarding award of attorney’s fees. Johnson v. Johnson, 564 P.2d 71 (Alaska 1977), cert. denied, 434 U.S. 1048, 98 S. Ct. 896, 54 L. Ed. 2d 800 (U.S. 1978). See also Cooke v. Cooke, 625 P.2d 291 (Alaska 1981).

The “prevailing party” rule, used for determination of awards of attorney’s fees under Civ. R. 82, is not applicable to awards of fees in divorce actions. Johnson v. Johnson, 564 P.2d 71 (Alaska 1977), cert. denied, 434 U.S. 1048, 98 S. Ct. 896, 54 L. Ed. 2d 800 (U.S. 1978).

In divorce or dissolution actions, attorney’s fees are not to be awarded solely on the basis of which party is regarded as the prevailing party. Cooper v. State, 638 P.2d 174 (Alaska 1981).

The parties’ relative economic situations and earning powers are relevant factors to be weighed in determining whether to order payment pursuant to paragraph (a)(1). Burrell v. Burrell, 537 P.2d 1 (Alaska 1975); Johnson v. Johnson, 564 P.2d 71 (Alaska 1977), cert. denied, 434 U.S. 1048, 98 S. Ct. 896, 54 L. Ed. 2d 800 (U.S. 1978); Bussell v. Bussell, 623 P.2d 1221 (Alaska 1981); Cooper v. State, 638 P.2d 174 (Alaska 1981).

Costs and fee awards in a divorce are not to be based on the prevailing party concept, but primarily on the relative economic situations and earning powers of the parties. Cooke v. Cooke, 625 P.2d 291 (Alaska 1981).

The general rule with regard to fees in a divorce case is that the court should consider the economic situation and earning power of each party: If the parties are in comparable economic situations, they should bear their own costs and fees and, generally, a court will award costs and fees only to the economically disadvantaged divorce litigant. Nicholson v. Wolfe, 974 P.2d 417 (Alaska 1999).

It was not an abuse of discretion to award a former wife interim attorney’s fees to litigate property and debt issues where there was a vast disparity in the parties’ annual income. Hopper v. Hopper, 171 P.3d 124 (Alaska 2007).

In litigation concerning child custody and support, award of attorney fees to the child’s mother under this section was proper, even though the mother and father were never married, because it was a “divorce-like” action and the award ensured that the parties had the means to litigate on a fairly equal plane, given the vast financial disparity between the parties, as well as the reasonableness of the requested fees. Eggener v. Wee, — P.3d — (Alaska Mar. 12, 2010), (memorandum opinion).

But are not the only permissible consideration. —

The relative economic standing of the parties is only a relevant consideration to the decision to award fees; it is not the only permissible consideration. Johnson v. Johnson, 564 P.2d 71 (Alaska 1977), cert. denied, 434 U.S. 1048, 98 S. Ct. 896, 54 L. Ed. 2d 800 (U.S. 1978).

Factors that are reasonable for the trial court to consider in determining whether to award fees are: (1) that an equal amount of fees had been expended by the parties; (2) that an equal amount of time and effort had been expended; and (3) that the property had been divided equally. Johnson v. Johnson, 564 P.2d 71 (Alaska 1977), cert. denied, 434 U.S. 1048, 98 S. Ct. 896, 54 L. Ed. 2d 800 (U.S. 1978); Cooper v. State, 638 P.2d 174 (Alaska 1981).

Awarding a wife full costs and attorney fees in a divorce action was an abuse of discretion because the court did not identify the nature and amount of the increased litigation costs the husband’s vexatious behavior caused. Adam M. v. Christina B., — P.3d — (Alaska June 5, 2013), (memorandum opinion).

Discretion of court in child custody dispute. —

When the father filed a complaint to establish custody over a foster child that the mother adopted, the superior court did not abuse its discretion when it ordered him to pay the mother interim attorney’s fees even though the parties were not legally married. The court reduced its original award of interim fees from $10,000 to $5,000, finding the award justified because the father had a greater income and occupied the home — the parties’ largest and only significant equity — throughout the action. Osterkamp v. Stiles, 235 P.3d 178 (Alaska 2010).

Effect of one party’s misconduct on award. —

One party’s misconduct does not authorize the court to disregard the relative economic situations and earning powers of the parties. In making an increased fee award, the court must first determine what fee award would be appropriate under the general rule, and only then increase the award to account for a party’s misconduct. Failure to follow this two-step process constitutes an abuse of discretion. Kowalski v. Kowalski, 806 P.2d 1368 (Alaska 1991).

The court must make explicit findings of bad faith or vexatious conduct and clearly explain its reasons for deviating from the general rule. When the court finds that one spouse’s misconduct has unnecessarily increased the other spouse’s costs, the court must identify the nature and amount of these increased costs. Kowalski v. Kowalski, 806 P.2d 1368 (Alaska 1991).

Mere evasiveness in responding, contentiousness over difficult issues, or delay in completing testimony do not, in themselves, constitute bad faith or vexatious conduct. These are by-products of the adversarial system itself. Conduct justifying an increased award must be such that the parties are prevented from litigating the action on an equal plane. Kowalski v. Kowalski, 806 P.2d 1368 (Alaska 1991).

Where the court concluded that, based on the parties’ relative economic situations and earning powers, the parties should each bear their own attorney’s fees, but further found that the husband’s vexatious conduct caused a $125,000 increase in fees, it followed the proper standard in awarding that amount in favor of the wife. Wright v. Wright, 904 P.2d 403 (Alaska 1995).

Because the parties did not have comparable economic situations, and the husband’s financial situation was more secure than the wife’s, it was not an abuse of discretion to award substantial attorney’s fees to the wife and, even though the wife had engaged in vexatious litigation conduct, her acts did not require complete denial of attorney’s fees. Beard v. Beard, 947 P.2d 831 (Alaska 1997).

Trial court’s findings that its order dividing property compensated for the disparity in the parties’ earning capacity and left them with comparable ability to litigate their divorce action, that both parties needlessly increased litigation costs and were completely uncooperative throughout the action, and that neither party had clean hands was sufficient to support its decision denying the wife’s request for attorney’s fees. Beal v. Beal, 88 P.3d 104 (Alaska 2004).

Wife was properly awarded legal fees based on the husband’s conduct during divorce proceedings, where the husband engaged in passive-aggressive behavior, which included incidents of domestic violence. Rodvik v. Rodvik, 151 P.3d 338 (Alaska 2006).

Good faith. —

As this section does not have a “good faith” requirement, the trial court did not have to make a finding as to good faith before ordering the father to pay the mother’s attorneys’ fees and the costs associated with the custody investigator. Koller v. Reft, 71 P.3d 800 (Alaska 2003).

Attorney fee agreement was not a contingency agreement. —

Ex-wife’s attorney fee agreement did not violate Alaska Bar R. 35(d) because payment of fees was not contingent on successful prosecution; rather, it turned on the financial resources of the parties. Hodge v. Sorba, 31 P.3d 1273 (Alaska 2001).

Standard of proof for amount of attorney fees awarded. —

Superior court abused its discretion in awarding a wife enhanced attorney fees without proper documentation and without a clear basis for the award because it based the award on the unsupported assertion of fees in the wife’s post-trial brief. Urban v. Urban, 314 P.3d 513 (Alaska 2013).

Deposit to cover costs of wife’s appeal. —

An order of court made after the entry of the final decree requiring the husband, in the event of an appeal by the wife, to deposit in the registry of the court or to give security for the payment of costs on such appeal, was proper. Leak v. Leak, 156 F. 474, 2 Alaska Fed. 815 (9th Cir. Alaska 1907).

Poverty of a husband is no defense to an application for temporary alimony where the action for divorce is brought by him, because he should not be permitted to prosecute an action if he cannot furnish the wife with the means necessary to make her defense. Van Atta v. Van Atta, 6 Alaska 266 (D. Alaska 1920).

Suit money is allowed when wife’s statement of need is only contradicted by husband’s affidavit. —

Where a wife states on oath that she has no means, and there is no other proof, except the counteraffidavit of the husband to the effect that she has means, suit money will be allowed to the wife. Van Atta v. Van Atta, 6 Alaska 266 (D. Alaska 1920).

Wife to pay own attorney’s fees. —

Assuming that husband possessed greater financial resources and greater earning capabilities, the wife’s resources and capabilities were sufficient that a court could reasonably expect her to pay her own attorney’s fees; the Alaska supreme court affirmed the trial court’s order requiring the wife to do so where the wife had training in landscape architecture and experience in drafting and there was testimony that those skills could earn her $18,000—$20,000 a year. H.P.A. v. S.C.A., 704 P.2d 205 (Alaska 1985).

Attorney fees to attorney-litigant. —

If a court wishes to award attorney’s fees for an attorney-litigant’s time it should do so only after making a clear segregation of his compensable time, expended as an attorney active in the litigation, and his noncompensable time, expended as client. Sherry v. Sherry, 622 P.2d 960 (Alaska 1981).

Award as condition of voluntary dismissal of action. —

The superior court clearly had discretion to award costs and attorney’s fees as a condition of a voluntary dismissal of an action to modify a child custody agreement. Sherry v. Sherry, 622 P.2d 960 (Alaska 1981).

Award of costs in suit for modification. —

In an action seeking modification of property division agreement previously incorporated in a divorce decree, when a party seeks modification of an arrearages judgment and of the property division in the divorce decree, the award of costs and attorney’s fees is appropriately made under Civ. R. 82. O'Link v. O'Link, 632 P.2d 225 (Alaska 1981).

Waiver. —

Court did not abuse its discretion in custody case by declining to infer that mother, when she agreed to settle the issue of custody without simultaneously securing an agreement on the issue of attorney’s fees, thereby meant to waive her entitlement to fees, and award of fees was upheld. Coleman v. Coleman, 968 P.2d 570 (Alaska 1998).

Evidence insufficient to award attorney’s fees. —

Award of $7,000 in attorney’s fees to the wife was reversed where the husband’s act of taking his son out of state without notifying the wife was insufficient evidence that he undertook a modification action willfully and without just excuse. Kessler v. Kessler, 827 P.2d 1119 (Alaska 1992).

Award of $200 in attorney’s fees held clearly inadequate. Vanover v. Vanover, 496 P.2d 644 (Alaska 1972).

Proper award. —

The court did not abuse its discretion in awarding attorney fees to the wife based on findings that the husband’s earning power and economic status were far superior to hers. Broadribb v. Broadribb, 956 P.2d 1222 (Alaska 1998).

In a dissolution of marriage case, the court did not err in its award of attorney’s fees where the wife sold a marital asset, receiving $14,500 in cash plus a replacement car worth $2,495 to pay attorney’s fees, and she did not inform the husband of the sale, nor did she split the proceeds with him. Because the trial court found that the sale violated the standing order, it attributed the difference between the fair market value and the actual proceeds from the sale to the wife. Schmitz v. Schmitz, 88 P.3d 1116 (Alaska 2004).

When modifying a divorce decree, a trial court did not err in awarding attorney fees to the wife because the husband’s delay in paying the wife for her share of the equity in the marital home unnecessarily increased her attorney fees. Worland v. Worland, 240 P.3d 825 (Alaska 2010).

Improper award. —

Superior court erred in awarding mother her costs and attorney’s fees in a custody proceeding where the costs and fees were carried over from a related child-in-need-of-aid proceeding. Cooper v. State, 638 P.2d 174 (Alaska 1981).

Where the parties were equally economically situated, the trial court erred in ordering the wife to pay a portion of the husband’s attorney fees simply because the husband spent more resources preparing his case than the wife did preparing hers. Sanders v. Sanders, 902 P.2d 310 (Alaska 1995).

Attorney’s fees were not appropriate in a divorce proceeding where the estate was large, both parties had received income-producing properties, and each had sufficient liquidity. Harrower v. Harrower, 71 P.3d 854 (Alaska 2003).

Collateral references. —

Misconduct or fault of wife as affecting right to temporary alimony, 2 ALR2d 307.

Necessity and sufficiency of notice and hearing as to allowance of suit money or counsel fees in divorce or other marital action, 10 ALR3d 280.

Wife’s possession of independent means as affecting her right to alimony pendente lite, 60 ALR3d 728.

Wife’s possession of independent means as affecting her right to child support pendente lite, 60 ALR3d 832.

Excessiveness or adequacy of money awarded as temporary alimony, 26 ALR4th 1218.

Right to credit against child support arrearages for time child lived in custody of noncustodial parent, other than for visitation, where custodial parent’s approval was not in issue or was disputed by parties, 112 ALR5th 185.

I.General Consideration

Annotator's notes. —

A number of cases cited in the notes below were decided under the former custody provisions of AS 09.55.210.

Constitutionality of section in specifying “religious needs” as consideration. —

This section in specifying that the “religious needs” of the child may be considered in awarding custody, is not unconstitutional on its face. Bonjour v. Bonjour, 592 P.2d 1233 (Alaska 1979).

Jurisdiction. —

District court should not have ceded its jurisdiction to Texas based on a finding that evidence about the children's current status was located there; trial court minimized the importance of protecting the children from the father's alleged domestic violence and the evidence required to resolve domestic violence and Indian Child Welfare Act issues. Inter alia, Alaska law has a presumption against awarding custody to a parent who was the perpetrator of domestic violence, and evidence relating to social and cultural standards, as well as testimony from a qualified expert, was located in Alaska. Rice v. McDonald, 390 P.3d 1133 (Alaska 2017).

Right to counsel. —

The due process clause of the Alaska Constitution guarantees an indigent parent the right to court-appointed counsel in a private child custody proceeding in which the spouse is represented by Alaska Legal Services Corporation. Flores v. Flores, 598 P.2d 893 (Alaska 1979).

Best interest finding. —

Superior court did not abuse its discretion in finding that an alternating week custody schedule was not in the best interests of the children because it considered the pertinent factors; even though the superior court did not cite the statute, its oral findings demonstrated that it considered several of the statutory best interest factors, and its made clear that it considered how well the children were doing in the current custody arrangement. Trout v. Trout, — P.3d — (Alaska June 27, 2018) (memorandum decision).

Superior court did not err in rejecting a mother's proposed week on/week off schedule would not be in the children's best interests because the children were doing well after a difficult adjustment to the divorce; the children's teachers all testified that the children were doing well, and the maternal grandmother thought it best for the children to remain primarily with the father. Trout v. Trout, — P.3d — (Alaska June 27, 2018) (memorandum decision).

Superior court did not abuse its discretion in prioritizing its finding that it would not be in the best interests of the children to move to a week on/week off schedule over accommodating the cost structure of military child care because the new custody schedule extended the mother's weekend visits and provided that those visits would occur on weeks during which she had Fridays off, suggesting that the mother would not need to purchase child care for these weekend visits. Trout v. Trout, — P.3d — (Alaska June 27, 2018) (memorandum decision).

In a case in which the superior court increased the amount of a father's visitation but left primary physical custody with the mother, as well as the right to make final decisions if the parents could not agree on issues of legal custody, the Supreme Court concluded that the superior court did not clearly err in its findings of fact or abuse its discretion in weighing the best interests factors. The father did not persuade the Supreme Court that the superior court overlooked any relevant evidence in its consideration of the stability and continuity factor. Belk v. Belk, — P.3d — (Alaska Mar. 18, 2020) (memorandum decision).

Modification held proper. —

Superior court did not err in modifying custody and the mother's visitation, in requiring her to demonstrate a long-term commitment to sobriety before she could regain shared physical custody of her children, and in concluding that an award of primary physical custody to the father was in the children's best interests because, while the court faulted both parents for their failure to prioritize their children, the mother had more work to do in establishing and maintaining her sobriety before she would be able to meet the children's needs; and the mother's history of alcohol abuse was directly affecting the emotional well-being of the children. Sarah B. v. Edward H., — P.3d — (Alaska Feb. 24, 2021).

Factors considered. —

Superior court’s determination of the daughter’s best interests included a discussion of each of the factors specified in subsection (c) and, given the superior court’s previous assessment and the custody investigator’s conclusion that the daughter had the capacity to express a preference, it was not error for the court to consider the daughter’s preference; reliance on the custody investigator’s findings was not erroneous, and in light of the parents’ inability to communicate or to act appropriately with one another and with professionals involved in the daughter’s care, awarding sole legal custody to the father was not error. Cusack v. Cusack, 202 P.3d 1156 (Alaska 2009).

Superior court erred when it delegated to a mother the authority to require the father to attend an intervention program for batterers as a prerequisite for unsupervised visits; a decision to impose a condition must be made by the court. Misyura v. Misyura, 242 P.3d 1037 (Alaska 2010).

Although a father contended that the superior court failed to consider the mother’s unannounced move to Florida with the child as evidence of the mother’s unwillingness to facilitate and encourage a close and continuing relationship between the father and the child under AS 25.24.150(c)(6) , the superior court did consider this factor, and in fact identified it as one of the most relevant factors in the case. Green v. Parks, 338 P.3d 312 (Alaska 2014).

Substance abuse. —

Superior court's consideration of a father's substance abuse did not constitute an abuse of discretion because while the evidence of the father's substance abuse had no bearing on the best interests factor in subsection (c)(8), the superior court committed no error by considering his methamphetamine use as part of its best interests analysis under subsection (c)(9). Lewis G. v. Cassie Y., 426 P.3d 1136 (Alaska 2018).

Only evidence supporting that there was substance abuse by the father was the mother's own allegations; the superior court did not clearly err in finding no substantiated evidence of substance abuse. Mengisteab v. Oates, 425 P.3d 80 (Alaska 2018).

Mother’s move constitutes change in circumstances. —

Where the court determined that the parties’ shared custody schedule was unworkable during the school year after the mother’s move, the custody modification order was supported by the evidence because the mother’s move was a substantial change in circumstances and modifying custody was in the children’s best interests under AS 25.24.150(c) . The court properly focused its best interests analysis primarily on the needs of the children, because the mother was the primary caretaker of the children, she had a more stable household, the father limited his communication when he got a new girlfriend, and he had stopped paying child support. Walsh v. Singleton, — P.3d — (Alaska June 8, 2022) (memorandum decision).

Move motivated by desire to frustrate visitation. —

Superior court did not clearly err in finding that the mother's move was primarily motivated by a desire to frustrate visitation; while she offered several legitimate reasons for her move, she repeatedly changed her plans about when she would leave Alaska, she did not provide contact information or adequate notice of her move to the court, and she did not provide either the court or the father with a forwarding address. Mengisteab v. Oates, 425 P.3d 80 (Alaska 2018).

Symmetrical best interest analysis required.—

Trial court erred in failing to consider the potential consequences to the child both if he were to live in Washington with the mother and if he were to live in Alaska without her, and on remand, the superior court was to conduct a symmetrical best interests analysis. Mengisteab v. Oates, 425 P.3d 80 (Alaska 2018).

Father not entitled to CINA protections. —

State was not involved in this custody dispute case between the parents; by restricting the father to supervised visitation until he took steps necessary to overcome the statutory presumption against custody, the superior court merely followed the law based upon its findings about the father's conduct and he was not entitled to the procedures and protections afforded parents in child in need of aid cases. Loren R. v. Sharnel V., — P.3d — (Alaska July 22, 2020) (memorandum decision).

Due Process Rights Not Violated. —

Superior court did not deny a father's his right to due process because the father did not attempt to show how he was prejudiced by the procedural deficiencies, and it was not clear how he could do so; the father was granted an opportunity to ask the mother for any information she had not provided during discovery,and he indicated that the superior court had fully addressed his concerns about the discovery. Lewis G. v. Cassie Y., 426 P.3d 1136 (Alaska 2018).

Applied in

Hinchey v. Hinchey, 625 P.2d 297 (Alaska 1981); Matson v. Matson, 639 P.2d 298 (Alaska 1982); Morel v. Morel, 647 P.2d 605 (Alaska 1982); McClain v. McClain, 716 P.2d 381 (Alaska 1986); Farrell v. Farrell, 819 P.2d 896 (Alaska 1991); Lowdermilk v. Lowdermilk, 825 P.2d 874 (Alaska 1992); Kessler v. Kessler, 827 P.2d 1119 (Alaska 1992); Harvick v. Harvick, 828 P.2d 769 (Alaska 1992); T.M.C. v. S.A.C., 858 P.2d 315 (Alaska 1993); Carstens v. Carstens, 867 P.2d 805 (Alaska 1994); Duffus v. Duffus, 932 P.2d 777 (Alaska 1997); Borchgrevink v. Borchgrevink, 941 P.2d 132 (Alaska 1997); I.J.D. v. D.R.D., 961 P.2d 425 (Alaska 1998); Hamilton v. Hamilton, 42 P.3d 1107 (Alaska 2002); Rosenblum v. Perales, 303 P.3d 500 (Alaska 2013).

Quoted in

Houger v. Houger, 449 P.2d 766 (Alaska 1969); Delgado v. Fawcett, 515 P.2d 710 (Alaska 1973); Balchen v. Balchen, 566 P.2d 1324 (Alaska 1977); Chavre v. Chavre, 598 P.2d 81 (Alaska 1979); Dowling v. Dowling, 679 P.2d 480 (Alaska 1984); S.N.E. v. R.L.B., 699 P.2d 875 (Alaska 1985); In re Adoption of S.K.L.H., 204 P.3d 320 (Alaska 2009); McAlpine v. Pacarro, 262 P.3d 622 (Alaska 2011); Scott v. Gaines, — P.3d — (Alaska June 14, 2017); Ruerup v. Ruerup, 408 P.3d 1203 (Alaska 2018); Edna K. v. Jeb S., 467 P.3d 1046 (Alaska 2020).

Edna K. v. Jeb S., 467 P.3d 1046 (Alaska 2020).

Stated in

L. A. M. v. State, 547 P.2d 827 (Alaska 1976); C.D.M. v. State, 627 P.2d 607 (Alaska 1981); Moeller-Prokosch v. Prokosch, 27 P.3d 314 (Alaska 2001).

Cited in

In re S. D., 549 P.2d 1190 (Alaska 1976); Granato v. Occhipinti, 602 P.2d 442 (Alaska 1979); Layne v. Niles, 632 P.2d 234 (Alaska 1981); Szmyd v. Szmyd, 641 P.2d 14 (Alaska 1982); Stone v. Stone, 647 P.2d 582 (Alaska 1982); Gerlach v. State, 699 P.2d 358 (Alaska Ct. App. 1985); Buness v. Gillen, 781 P.2d 985 (Alaska 1989); J.F.E. v. J.A.S., 930 P.2d 409 (Alaska 1996); C.R.B. v. C.C., 959 P.2d 375 (Alaska 1998); Vinzant v. Elam, 977 P.2d 84 (Alaska 1999); Glasen v. Glasen, 13 P.3d 719 (Alaska 2000); Evans v. McTaggart, 88 P.3d 1078 (Alaska 2004); Karrie B. v. Catherine J., 181 P.3d 177 (Alaska 2008); Skinner v. Hagberg, 183 P.3d 486 (Alaska 2008); McLane v. Paul, 189 P.3d 1039 (Alaska 2008); Dragseth v. Dragseth, 210 P.3d 1206 (Alaska 2009); Hunter v. Conwell, 219 P.3d 191 (Alaska 2009); Barlow v. Thompson, 221 P.3d 998 (Alaska 2009); Dale H. v. State, 235 P.3d 203 (Alaska 2010); Susan M. v. Paul H., 362 P.3d 460 (Alaska 2015); In re Hannah L., 390 P.3d 1153 (Alaska 2017); Moore v. McGillis, 408 P.3d 1196 (Alaska 2018).

II.Determination of Custody

A.In General

Welfare of children is given paramount consideration. —

In determining the custody of children the trial court should be guided by the rule that the welfare and best interests of the children should be given paramount consideration. Rhodes v. Rhodes, 370 P.2d 902 (Alaska 1962); Ransier v. Ransier, 414 P.2d 956 (Alaska 1966); Glasgow v. Glasgow, 426 P.2d 617 (Alaska 1967); Bass v. Bass, 437 P.2d 324 (Alaska 1968); Sheridan v. Sheridan, 466 P.2d 821 (Alaska 1970).

The paramount criterion of the welfare and best interests of the child overrides consideration of any factor of technical fault. Bass v. Bass, 437 P.2d 324 (Alaska 1968).

There has been a steady course of legal development whereby the best interests of the child are to be the paramount consideration in custody cases, to the exclusion of other criteria, such as the doctrine that children of tender years will generally be awarded to the mother when other factors are fairly evenly balanced. King v. King, 477 P.2d 356 (Alaska 1970).

The paramount consideration in any custody determination is what appears to be for the best interests of the child. Carle v. Carle, 503 P.2d 1050 (Alaska 1972); Nichols v. Nichols, 516 P.2d 732 (Alaska 1973); Wetzler v. Wetzler, 570 P.2d 741 (Alaska 1977); Faro v. Faro, 579 P.2d 1377 (Alaska 1978); Bonjour v. Bonjour, 592 P.2d 1233 (Alaska 1979); Starkweather v. Curritt, 636 P.2d 1181 (Alaska 1981).

Between parents, custody is to be awarded according to the best interests of the child. Veazey v. Veazey, 560 P.2d 382 (Alaska 1977).

In sifting and weighing the often emotionally charged and diametrically opposed testimony of the parties, Alaska decisions and Alaska’s positive law require that the trial court’s resolution of custody issues be determined by the paramount criterion of the best interests of the child. Horutz v. Horutz, 560 P.2d 397 (Alaska 1977).

The primary goal of the court in awarding custody is to further the best interests of the child, which includes respecting the beliefs of a mature child, whether they be religious or nonreligious. Bonjour v. Bonjour, 592 P.2d 1233 (Alaska 1979).

Where the trial court found that the children’s best interests required that they remain with the mother, the trial court did not abuse its discretion when it allowed the mother to retain custody. Pearson v. Pearson, 5 P.3d 239 (Alaska 2000).

In child custody proceedings, the best interests of the child is the paramount consideration, and the father’s argument that the superior court’s decision was “prejudicial” to him did not provide sufficient grounds for reversing the superior court’s order awarding custody to the mother. R.I. v. C.C., 9 P.3d 274 (Alaska 2000).

Best interests of the child according to the child custody factors listed in subsection (c) do not include a blood-relative placement. Adoption of L.E.K.M., 70 P.3d 1097 (Alaska 2003).

Trial court adequately considered several factors to support its conclusion that awarding the custody of a divorcing couple’s children to the wife was properly within the children’s best interests; the trial court’s finding that supervised visitation with the husband could be authorized after a psychological assessment was appropriate. Rodvik v. Rodvik, 151 P.3d 338 (Alaska 2006).

Where parents who had joint custody of their daughter disagreed on obtaining a passport for the daughter, the trial court should have taken into account the child’s best interests, which include the opportunity for foreign travel. The mother should have been ordered to consent. Patrawke v. Liebes, 285 P.3d 268 (Alaska 2012).

Superior court properly awarded the parents shared physical and joint legal custody of their children because it was in their children’s best interests where, inter alia, the record was replete with evidence, including the mother’s own admissions, supporting a finding that the mother’s conduct interfered with the children’s reunification counseling and their relationship with their father. Caroline J. v. Theodore J., 354 P.3d 1085 (Alaska 2015).

Court did not err by awarding custody of the children to the father because it considered each of the best interest factors, the superior court held hearings over two days and considered the custody investigator's reports before issuing its custody order, and the record supported each of the determinations that the challenged best interest factors favored the father. Francesca S. v. Shawn K., — P.3d — (Alaska Sept. 8, 2021) (memorandum decision).

Even over claims of parents. —

Where neither parent exhibited any characteristics of a proper person to have the care and control of two little boys, the welfare of the children was made paramount to the claims of either parent. Leak v. Leak, 3 Alaska 164 (D. Alaska 1906), dismissed, 156 F. 473, 2 Alaska Fed. 814 (9th Cir. Alaska 1907).

The best interests of the parent, or detriment to the parent, are not the test. Veazey v. Veazey, 560 P.2d 382 (Alaska 1977); Horutz v. Horutz, 560 P.2d 397 (Alaska 1977).

All factors to be considered. —

While a court determining custody must always consider each of the statutory factors, it need not refer to all of them in explaining its decision, but need only discuss those factors that it considers actually relevant in light of the evidence presented in the case before it. Park v. Park, 986 P.2d 205 (Alaska 1999).

Where the court’s brief findings did not disclose active consideration of more than one factor, and where there was an indication that it specifically declined to consider at least one factor, not only was effective appellate review precluded but the party not awarded custody was deprived of any reliable means of determining if the court based its custody decision on any factual or legal error, and reversal and remand was required. Park v. Park, 986 P.2d 205 (Alaska 1999).

The trial court did not commit error in considering the manner and circumstances in which mother left the marital home, her lack of contact with the children after she left, and the effect of her conduct on the children. These were not improper factors because the negative impact of the mother’s conduct on the children was pertinent to the best interests of the children and her capability and desire to address their emotional needs. Velasquez v. Velasquez, 38 P.3d 1143 (Alaska 2002).

When one parent who was seeking custody planned to relocate out of state, the trial court had to treat the move as a given and conduct a best-interests-of-the-children analysis as if the parents were in different states; the court had to consider the reasons for the parent’s move and, if those reasons were legitimate, then the trial court could not hold the relocation against the parent who was intending to move, such that the trial court did not apply the correct standard in analyzing the consequences of a relocation by the father. Dick v. Thompson, — P.3d — (Alaska July 30, 2003).

In rejecting the recommendation of the custody investigator’s report, superior court correctly decided that mother’s act in turning children over to another family during the husband’s incarceration showed that she placed the children’s best interests first, rather than demonstrating her inability to care for them. Chase v. Chase, 109 P.3d 942 (Alaska 2005).

Court properly awarded sole custody of two children, and shared custody of a third, to the mother, where she was the primary caretaker, the father was often absent, and the mother showed her involvement in the children’s lives and good parenting skills. Ebertz v. Ebertz, 113 P.3d 643 (Alaska 2005).

Trial court clearly indicated which factors from subsection (c) it considered important in its custody determination. Jaymot v. Skillings-Donat, 216 P.3d 534 (Alaska 2009).

Trial judge did not fail to consider the required factors when awarding legal custody to the father, as she found relevant the parties’ inability to work together cooperatively, the father’s increased ability to provide for the child’s needs, the concern that the mother’s husband lacked appropriate parenting skills or experience, and the mother’s and husband’s possible use of illegal drugs. Peterson v. Swarthout, 214 P.3d 332 (Alaska 2009).

Superior court did not abuse its discretion by restricting the wife's use of alcohol and other substances while she had custody of the child where the court adequately explained, and the record supported, its findings as to the wife's alcohol use and the risk of violence to the child, neither parent accepted or understood that continued substance use could have exposed the child to harm, and the parents' substance abuse had exacerbated domestic violence and led to incarceration. Moreover, the court not only appropriately considered and weighed the statutory factors most relevant to its custody determination, it awarded custody to the mother based upon its consideration Jill Y. v. Casey Y., 2020 Alas. LEXIS 46 (May 15, 2020).

All domestic violence or child abuse to be considered. —

Appellant argued that the 2012 finding that he sexually abused the mother's son more than once was too non-specific to be a valid finding of a history of perpetrating domestic violence under AS 25.24.150(g) -(j), but this did not significantly advance appellant's argument, as the court is required to take into account any evidence of domestic violence or child abuse, not just whether there is a history of domestic violence, when making decisions about custody and visitation. Robert A. v. Tatiana D., 474 P.3d 651 (Alaska 2020).

Weight accorded domestic violence factor. —

Although a father committed at least two acts of domestic violence during the parties’ marriage, which triggered the statutory presumption against giving him custody, findings that the children were not at risk of harm from the father were supported not only by the testimony of experts who evaluated the parties but also by the wife’s concession that the danger of harm to the children was outweighed by their need to have contact with their father. Stephanie F. v. George C., 270 P.3d 737 (Alaska 2012).

Based on father’s history of domestic violence, the mother was properly awarded sole legal and primary physical custody. Adam M. v. Christina B., — P.3d — (Alaska June 5, 2013), (memorandum opinion).

Superior court did not err in declining to find that a father had committed acts of domestic violence against a mother because it was within the superior court’s discretion to decline to give a protective order collateral estoppel effect, and that the discretion was not abused; the superior court determined that because of the relatively quick dismissal of the order and its role in the custody negotiations, the father had little incentive to litigate it fully. Harris v. Governale, 311 P.3d 1052 (Alaska 2013).

Although a father challenged the superior court’s finding that there was no evidence of recent, relevant domestic violence, the only evidence of any domestic violence which would favor the father’s position appeared in the “parenting concerns” he shared with the custody investigator, where he alleged that the mother hit him during arguments and threw water on him. But the custody investigator ultimately found no evidence of domestic violence, child abuse, or neglect in either of the proposed custodial households and that there was no other evidence to support the father’s allegation that the mother hit him. Dobson v. Dobson, — P.3d — (Alaska Aug. 6, 2014) (memorandum decision).

Pre-settlement-agreement domestic violence accusations were properly considered by the court in applying AS 25.24.150(g) ’s rebuttable presumption that a parent with a history of domestic violence could not be awarded custody where the court fully explained the legal basis for its decision. Kenneth S. v. Beulah E., — P.3d — (Alaska Aug. 26, 2015) (memorandum decision).

Award of physical and legal custody of minor children to the mother was appropriate because the superior court did not err when it found that the father had a history of domestic violence and that the mother did not because the court believed testimony of the mother and the mother's witnesses, including an adult daughter, and did not believe the testimony of the father and the father's witnesses. The superior court's determination that the domestic violence presumption applied to the father, but not to the mother, was not clearly erroneous. Frederico A. v. Francisca A., — P.3d — (Alaska Dec. 28, 2016) (memorandum decision).

Stability and continuity. —

The interests of long-term stability and continuity favored the award of primary physical custody to the father. The court gave careful and considered weight to the facts relevant to the stability and continuity factor, including the disruptions in the father’s domestic life, which the court found were likely to be temporary. Harris v. Governale, 311 P.3d 1052 (Alaska 2013).

Best interest factors were properly considered when awarding custody to a father; the trial court determined that one child was confused by the parents’ relationship and appeared to be psychologically and emotionally traumatized; moreover, the father was better able to meet the physical and emotional needs of the children, and stability weighed towards keeping the children with the father. Yelena R. v. George R., 326 P.3d 989 (Alaska 2014).

Findings on stability and other issues supported. —

Superior court's findings as to the child's needs, stability, and parental substance abuse were not clearly erroneous; the father pointed to no evidence that the mother's pattern of instability affected her parenting, the child spent a majority of his time with the mother, and the court was not required to consider the mother's alleged disruptive relationship history unless it had an effect on her parenting abilities or the child. Bruce H. v. Jennifer L., 407 P.3d 432 (Alaska 2017).

Rebuttable presumption against perpetrator of domestic violence. —

Rebuttable presumption against denial of custody to a parent who has perpetrated domestic violence under subsection (g) may be overcome by means other than completion of an intervention program for batterers. Stephanie F. v. George C., 270 P.3d 737 (Alaska 2012).

Award of custody to a mother was proper. Although there were some issues with mother’s possible propensity for domestic violence, only one act on her part was found to constitute domestic violence. Other incidents, including pinching and throwing objects, occurring over a number of years, were not enough to classify the mother as someone with a history of perpetrating domestic violence. Clark v. Clark, — P.3d — (Alaska Sept. 26, 2012), (memorandum opinion).

Award of sole legal and physical custody of the parties’ children to the mother was appropriate where the father did not overcome the domestic violence presumption in subsection (g); in light of his strong denial of mistreating his children in a manner that resulted in their alienation, he had not dealt with his conduct in a meaningful way. Colin J. v. Susan J., — P.3d — (Alaska May 8, 2013), (memorandum opinion).

In a child custody case, a trial court did not err by failing to apply a domestic violence presumption because it was not clearly erroneous to find that a father did not have a history of domestic violence; both the mother and father gave conflicting accounts of alleged assaults, and courts in both Alaska and Massachusetts expressed doubts about the mother’s credibility regarding alleged incidents of physical or sexual abuse. Yelena R. v. George R., 326 P.3d 989 (Alaska 2014).

There was only one proven instance of domestic violence by the father, the mother did not prove more than 30 other domestic violence allegations, and she exaggerated carelessly, or simply fabricated claims, reducing the credibility of her allegations. Given this, the father did not have a history of domestic violence and the statutory presumption barring parents with a history of domestic violence from having custody of children did not apply. McAlpine v. Pacarro, — P.3d — (Alaska Oct. 8, 2014)(memorandum decision).

Mother was properly awarded child custody because, inter alia, the father’s actions, including statutory rape of the mother, violation of a domestic violence protection order, and striking another child, triggered the presumption in subsection (g) against awarding the father custody. Thomas G. v. Sonya G., — P.3d — (Alaska June 24, 2015), cert. denied, 577 U.S. 1079, 136 S. Ct. 834, 193 L. Ed. 2d 741 (U.S. 2016)(memorandum decision).

In a child custody case, a remand was appropriate after an award of joint physical custody to both parents because the trial court’s findings were ambiguous as to whether the father committed more than one act of domestic violence in the context of the rebuttable presumption under this statute. Faye H. v. James B., 348 P.3d 876 (Alaska 2015).

Superior court did not err by failing to apply the statutory presumption against custody by the father in making its custody determination as the mother failed to prove her allegations of abuse because, al- though the mother repeatedly alleged that she had been the victim of abuse, she presented scant evidence to prove those allegations, despite the superior court’s repeated efforts to elicit examples of specific conduct that she considered abusive. Kristi N. v. Christopher R. (Alaska Mar. 9, 2016) (memorandum decision).

Father was properly awarded child custody because the mother's domestic violence precluded awarding her custody, based on acts rising to the level of fourth degree assault, consisting of throwing a television remote at the father, causing bruising, and drugging the father with methadone. Kierston R. v. Eugene R., — P.3d — (Alaska Dec. 21, 2016) (memorandum decision).

Award of equal custody clearly falls within the meaning of “joint physical custody” for purposes of this section, and the Alaska Supreme Court cautions courts against using the unsupervised visitation provision to bypass the requirements for allowing custody under the provision related to domestic violence. Jessie R. v. Timothy F., — P.3d — (Alaska Apr. 5, 2017) (memorandum decision).

Because the father had a history of domestic violence, the superior court was required to find that he had rebutted the domestic violence presumption before granting him joint physical custody; because there was no such finding the order was vacated and the case was remanded. Jessie R. v. Timothy F., — P.3d — (Alaska Apr. 5, 2017) (memorandum decision).

Although a husband objected to application of the rebuttable domestic violence presumption because he was surprised by the wife's request to apply the presumption, he could have asked for a continuance to conduct discovery when the wife raised the issue, or he could have filed a timely motion to reopen the evidence following the superior court's application of the presumption against him. Because the husband failed to do any of these things, it was reasonable to find he was not entitled to introduce new evidence over a month after the superior court's decision. Burns-Marshall v. Krogman, 433 P.3d 1121 (Alaska 2018).

Mother was properly granted sole legal and primary physical custody of the parties' child because an Oregon court found multiple acts of domestic violence by the father, and two specific instances of physical violence when the father grabbed the mother by the hair and held her chin, and when he burned her arm by pushing her against a woodstove; other than disagreeing, the father made no effort to show why those findings were clearly erroneous; and it was not a mistake for the superior court to have found that the father - not the mother - was a perpetrator of domestic violence; thus, the father's challenge to the domestic violence presumption was rejected, and he could not be awarded sole or joint legal or physical custody of the child. Louis W. v. Maria G., — P.3d — (Alaska Sept. 26, 2018) (memorandum decision).

Alaska Supreme Court does not read the first condition for overcoming the presumption in subsection (g), successful completion of an intervention program for batterers, as intending to require an empty exercise; the purpose of the presumption is to protect children from potentially adverse custody determinations, specifically to decrease the likelihood that children will be placed in the custodial household where domestic violence exists. Joy B. v. Everett B., 451 P.3d 365 (Alaska 2019).

Trial court did not clearly err by finding that the father rebutted the statutory presumption under subsection (g) against awarding him custody; the trial court did not err by relying on evidence that the father had applied for entry to a batterers' program but was found unsuited for it. Joy B. v. Everett B., 451 P.3d 365 (Alaska 2019).

Court may consider the nature of the domestic violence when deciding whether the presumption against awarding custody to the perpetrator has been overcome; therefore, the trial court did not err when it considered the seriousness of the father's incidents of domestic violence, and specifically their situational nature, in the context of deciding whether he had overcome the presumption against awarding him custody of the parties' child. Joy B. v. Everett B., 451 P.3d 365 (Alaska 2019).

Whether the superior court abused its discretion by refusing to allow a father's counselor to testify as an expert was moot because whether the father was likely to successfully complete the batterers' intervention program was no longer an issue; the only conditions remaining on the father's ability to have unsupervised visitation involved the substance abuse assessment, his compliance, and establishing that he was no longer abusing alcohol, issues not addressed by the counselor. — P.3d —.

Domestic violence factor findings erroneous.—

Superior court's findings relating to domestic violence were clearly erroneous, as neither the best interests statute nor Alaska precedent requires evidence of either separate judicial proceedings or multiple instances of domestic violence to make domestic violence findings in a custody dispute; also, the superior court improperly relied on the statute to define domestic violence, as that statute contains no such definition, instead describing the presumption against awarding custody to a parent with a history of perpetrating domestic violence. Bruce H. v. Jennifer L., 407 P.3d 432 (Alaska 2017).

It was error for the superior court to fail to make detailed findings about alleged incidents of domestic violence by a father when weighing the best interests factors and deciding whether there was a history of domestic violence for purposes of the presumption against awarding custody to the perpetrator because it looked only to whether the mother suffered physical injury or was placed in fear of imminent physical injury, which were not determinative of whether domestic violence occurred. Jennifer L. v. Geoffrey G., — P.3d — (Alaska May 19, 2021) (memorandum decision).

Superior court did not clearly err or abuse its discretion by requiring the husband to complete a substance abuse program before visitation because the record supported the finding that the husband had a history of drug and alcohol use that had negative consequences for him, including promoting a loss of self-control and irrational and controlling behavior. Benjamen J. v. Heather J., — P.3d — (Alaska Apr. 21, 2021) (memorandum decision).

Superior court did not abuse its discretion by requiring a husband to complete a batterers' intervention program before visitation because witness testimony suggested that traditional intervention programs were reasonably available; the husband did not point to meaningful evidence that he actually was unable to attend a specific program, and testimony supported the conclusion that his completion of the batterers' intervention program would be in his children's best interests. Benjamen J. v. Heather J., — P.3d — (Alaska Apr. 21, 2021) (memorandum decision).

Superior court did not clearly err in finding that a husband did not rebut the domestic violence presumption because its findings were adequate each of its relevant factual findings was supported by testimony; the husband did not rebut the presumption because he repeatedly committed acts of domestic violence, his drug use harmed his children, and his therapy was not as valuable as a traditional batterers' intervention program. Benjamen J. v. Heather J., — P.3d — (Alaska Apr. 21, 2021) (memorandum decision).

Domestic violence factor findings erroneous. —

Trial court erred by determining that the April 2015 incident was not an act of domestic violence because the ex-wife's unsuccessful effort to keep the ex-husband from taking her phone could not qualify as the type of mutual combat that could transform the ex-husband's actions from an attempted theft and subsequent assault into disorderly conduct. Heather R. v. Justin L., — P.3d — (Alaska Sept. 8, 2021) (memorandum decision).

Domestic violence factor findings proper. —

Trial court did not err when it found that the November 2016 incident did not constitute an act of domestic violence because its finding that the ex-wife had not proved that the ex-husband had sexually assaulted her was based on its finding that she was not credible, and the court was not left with a definite and firm conviction that the trial cour erred. Heather R. v. Justin L., — P.3d — (Alaska Sept. 8, 2021) (memorandum decision).

Granting custody to a non-party. —

Under AS 25.20.060 and subsection (c), the trial court has discretion to grant custody to a non-party if (1) the non-party consents, (2) the award complies with the requirements in Evans v. McTaggart, 88 P.3d 1078 (Alaska 2004) for overriding the parental preference, (3) the non-party could have intervened in the custody dispute, and (4) the parties to the custody dispute have sufficient notice of the possibility that a non-party will receive custody to satisfy due process. Elton H. v. Naomi R., 119 P.3d 969 (Alaska 2005).

Under AS 25.20.060 and subsection (c) of this section, where the trial court awarded physical custody to a non-parent over the objections of a parent, and failed to make findings by clear and convincing evidence either that the parent was unfit or that the welfare of the children required the children to remain with the non-parent, the order awarding shared physical custody violated. Evans v. McTaggart, 88 P.3d 1078 (Alaska 2004); Elton H. v. Naomi R., 119 P.3d 969 (Alaska 2005).

Award to grandparents upheld. —

Trial court did not err in awarding the maternal grandmother and the step-grandfather joint legal and primary physical custody of the child, as the mother's husband's anger created an unstable home, the mother was unwilling to recognize the child's special needs and ill-equipped to meet them, and the mother was likely to terminate the child's relationship with his grandparents, to the child's detriment. Dara v. Gish, 404 P.3d 154 (Alaska 2017).

Stepchild as “child of the marriage”. —

Where stepparent has assumed status of in loco parentis, a stepchild is a “child of the marriage” within this section. Carter v. Brodrick, 644 P.2d 850 (Alaska 1982).

Father’s relationship with his stepdaughter could properly be considered as a factor in determining custody of his natural children. Tompkins v. Tompkins, 961 P.2d 419 (Alaska 1998).

Award of custody to father upheld. —

In a child custody dispute, the superior court did not err in awarding custody to a father because the superior court properly considered factors set forth in subsection (c) when it decided the father was better able to foster the child’s relationship with the child’s mother, the father was better able to meet the child’s needs, and the father offered the child continuity based on emotional and geographic stability. Blanton v. Yourkowski, 180 P.3d 948 (Alaska 2008).

In a child custody case, the court did not err in finding that the mother had not proven the father had sexually abused the child; the court weighed testimony of the child’s therapist, noting inconsistencies in the testimony, and it found credible the father’s and his girlfriend’s testimony regarding sexual materials and behavior in their household. Stephanie W. v. Maxwell V., 274 P.3d 1185 (Alaska 2012).

Finding that father in a child custody case was not engaged in selling alcohol and drugs at the father’s home in the state of Washington was not clearly erroneous because proof of that allegation was lacking. Accordingly, it was not clear error for the trial court to award the father sole physical custody of the minor child in Washington, despite evidence that the father did sell alcohol and drugs in Barrow. Hopson v. Hart, — P.3d — (Alaska Sept. 12, 2012) (memorandum decision).

Award of sole legal and primary physical custody of the child to the father was proper where the superior court found that an award of primary physical custody to the mother would stunt the child’s normal develop- mental needs; the child did not express any concern about the father; the child was mature enough that his expressed preference to be with the father was entitled to some weight; and the mother did not prove her allegations of abuse by the father by a preponderance of the evidence as she was unable to provide examples of or details about the father’s alleged abuse to the investigator or during her lengthy testimony. Kristi N. v. Christopher R. (Alaska Mar. 9, 2016) (memorandum decision).

Superior court did not abuse its discretion in awarding the husband primary physical custody of the children where it considered the wife's actions related to the foreclosure of the marital home, credited the husband's testimony as to the children's state after being with the wife, and the husband was in a better position to facilitate contact. Berg v. Berg, — P.3d — (Alaska Aug. 15, 2018) (memorandum decision).

Trial court did not clearly err in finding that it was in the child's best interests to be in the father's sole custody; given its underlying factual findings, which were not clearly erroneous, the court's use of the diagnostic label "parental alienation" to summarize its thoughts on the issue did not show that it abused its discretion, and there was no error in the court's consideration of the mother's "stalking-type behavior" in reaching its custody decision. Joy B. v. Everett B., 451 P.3d 365 (Alaska 2019).

Facilitation of relationship between child and other parent. —

Primary physical custody was properly awarded to a father under paragraph (c)(6) because he was more likely to facilitate a relationship between the child and the mother; while he allowed the mother visitation time in addition to court-ordered visitation, she never offered him extra time with the child, and she even shortened his court-ordered visitation. Nancy M. v. John M., 308 P.3d 1130 (Alaska 2013).

In a child custody case, a trial court properly considered the fact that a mother took the children to another state without the father’s consent, and the removal occurred after a court had determined that the mother’s allegations of abuse were unsubstantiated; the facts were relevant in deciding the mother’s willingness to facilitate a relationship between the father and the children. Yelena R. v. George R., 326 P.3d 989 (Alaska 2014).

Superior court’s finding that the mother was more likely to foster an open relationship with the father was not clearly erroneous given the father’s disparaging testimony about the mother. Beals v. Beals, — P.3d — (Alaska Mar. 25, 2015) (memorandum decision).

Application of statutory presumption. —

Because a finding of a history of domestic violence triggers the AS 25.24.150(g) presumption against custody, the superior court's application of the statutory presumption after it found that a father committed multiple acts of domestic violence was proper. Clarence S. v. Samantha S., — P.3d — (Alaska Sept. 23, 2020) (memorandum decision).

Broad discretion. —

The trial court’s duty to provide for the care and custody of minor children in divorce proceedings places a grave responsibility upon the court and at the same time gives it broad discretion. Bass v. Bass, 437 P.2d 324 (Alaska 1968).

The law now vests a very wide discretion in the trial court to determine where custody shall be placed. King v. King, 477 P.2d 356 (Alaska 1970); Carle v. Carle, 503 P.2d 1050 (Alaska 1972); Horutz v. Horutz, 560 P.2d 397 (Alaska 1977).

The trial court is given broad discretion in fashioning suitable visitation rights and support obligations. Curgus v. Curgus, 514 P.2d 647 (Alaska 1973).

Superior court did not clearly err in finding that a father’s substance abuse did not affect the child’s well-being because the evidence on the subject was mixed, and it was up to the superior court to resolve the evidentiary disputes. Harris v. Governale, 311 P.3d 1052 (Alaska 2013).

But that discretion is not unlimited. —

Trial courts have wide discretion in determining custody issues, but that discretion is not unlimited. Johnson v. Johnson, 564 P.2d 71 (Alaska 1977), cert. denied, 434 U.S. 1048, 98 S. Ct. 896, 54 L. Ed. 2d 800 (U.S. 1978).

Standard for custody in section parallels supreme court standard. —

The legislative standard for custody expressed in this section parallels the standard articulated by the supreme court. Carle v. Carle, 503 P.2d 1050 (Alaska 1972); Bonjour v. Bonjour, 566 P.2d 667 (Alaska 1977).

No single factor should be allowed to outweigh all others in analyzing the best interests of a child. In re J.J.J., 718 P.2d 948 (Alaska 1986).

Memorialization of statutory factors. —

Courts are not required to memorialize their findings for each of the statutory factors. Virgin v. Virgin, 990 P.2d 1040 (Alaska 1999).

Where the trial court addressed the issue of the children’s preferences in the context of discussing whether the father’s behavior was manipulative, that consideration reflected the manner and context in which the issue was disputed at trial, and the court did not err in failing to make a separate, explicit finding as to preferences. Virgin v. Virgin, 990 P.2d 1040 (Alaska 1999).

Trial court did not meaningfully review or memorialize the factors considered in its award of child custody; the evidence as to the wishes of the younger children was limited and biased, and the court did not address the merits of several relevant and contested factors, including domestic violence. Thomas v. Thomas, 171 P.3d 98 (Alaska 2007).

Consideration of nonstatutory factors. —

Trial court did not abuse its discretion pursuant to subsection (c) in awarding primary physical custody of the children to father based on the nonstatutory factors of the added stability the children might gain from continuing to live in their family residence and the potential instability they might suffer from being uprooted immediately following the divorce. Evans v. Evans, 869 P.2d 478 (Alaska 1994).

Ability to provide for child. —

Paragraphs (c)(1) and (2) require no more than that the proposed adoptive parents be able to meet the child’s basic needs. Adoption of L.E.K.M., 70 P.3d 1097 (Alaska 2003).

Superior court did not clearly err in finding that couple granted custody of an orphan could provide for the child’s needs where the wife had a home day care business and the husband made about $18.50 per hour at his full-time job. Adoption of L.E.K.M., 70 P.3d 1097 (Alaska 2003).

Evidence the mother presented to show the father’s inability to meet their daughter’s needs was unconvincing, and it was not error to determine that the mother’s confrontational and negative behavior rendered the father the parent better able to meet their daughter’s needs. Jaymot v. Skillings-Donat, 216 P.3d 534 (Alaska 2009).

Children should be kept together if possible. —

In determining custody of children consideration should be given to the desirability of keeping the children of the family together so that they may enjoy the normal condition of childhood of growing up together as brothers and sisters. Rhodes v. Rhodes, 370 P.2d 902 (Alaska 1962); Glasgow v. Glasgow, 426 P.2d 617 (Alaska 1967).

Consideration should be given to the desirability of not separating the children unless their welfare clearly requires such a course. Nichols v. Nichols, 516 P.2d 732 (Alaska 1973).

Consideration should be given to the desirability of not separating the children unless their welfare clearly requires such a course. As in other facets of the difficult problems confronting a trial judge in custody matters, there is no hard and fast rule, and the question of whether or not it is necessary to separate children must depend upon the facts and circumstances of each particular case. McQuade v. McQuade, 901 P.2d 421 (Alaska 1995).

The question of whether it is necessary to separate children must depend upon the facts and circumstances of each particular case. Nichols v. Nichols, 516 P.2d 732 (Alaska 1973).

Where the mother relocated with her other children to Arizona, and the child had spent considerable amounts of time away from her sisters due to an interim shared custody arrangement, finding that the separation of a child from her half-sisters was not dispositive in a child custody case was not error. Puddicombe v. Dreka, 167 P.3d 73 (Alaska 2007).

The doctrine of tender years is not an appropriate criterion for determination of the best interests of the child under this section. Johnson v. Johnson, 564 P.2d 71 (Alaska 1977), cert. denied, 434 U.S. 1048, 98 S. Ct. 896, 54 L. Ed. 2d 800 (U.S. 1978); Wetzler v. Wetzler, 570 P.2d 741 (Alaska 1977).

The “tender years” doctrine was specifically rejected in Johnson v. Johnson, 564 P.2d 71 (Alaska 1977), cert. denied, 434 U.S. 1048, 98 S. Ct. 896, 54 L. Ed. 2d 800 (1978), and the opinion in Wetzler v. Wetzler, 570 P.2d 741 (Alaska 1977), in no way revived the doctrine. Faro v. Faro, 579 P.2d 1377 (Alaska 1978).

Where the court found both parents to be fit and proper parents, but the father was in a better position to provide for the 7-year-old boy and 5-year-old girl, the court did not abuse its discretion by rejecting the mother’s tender years argument and awarding the father custody of those two children, and awarding custody of a 2 1/2-year-old to the mother until the child reached the age of 5. Harding v. Harding, 377 P.2d 378 (Alaska 1962); Glasgow v. Glasgow, 426 P.2d 617 (Alaska 1967); Bass v. Bass, 437 P.2d 324 (Alaska 1968); Sheridan v. Sheridan, 466 P.2d 821 (Alaska 1970).

The record supported the father’s argument that the superior court abused its discretion by relying on the tender years doctrine in making its custody determination. The erroneous application of the tender years doctrine was evidenced by court’s comments about the mother-child bond being genetic and biological, and about the mother’s “desperate” love for the child so that she had to take care of him, as opposed to the father’s “appropriate” male love by a person who is not the primary psychological parent. Weinberger v. Weinmeister, 268 P.3d 305 (Alaska 2012).

Preference of child. —

Paragraph (c)(3) requires courts making custody determinations to consider the child’s preference if the child is of sufficient age and capacity to form a preference, and the trial court did not err by giving weight to the 14-year-old child’s well-reasoned preference to live with his father. Valentino v. Cote, 3 P.3d 337 (Alaska 2000).

Superior court was justified in its decision not to give weight to a child’s preference for living with his mother because, although the child was 14 years old, he lacked the emotional maturity for his preference to be credited; the child was able to manipulate his mother, and his need for discipline, which his father provided, was entitled to more weight than his preference to live with his mother. Michele M. v. Richard R., 177 P.3d 830 (Alaska 2008).

A custody decision that provided for alternate week custody for two younger children, and primary custody of the eldest child with the father, was proper. Evidence showed that the eldest child had a better relationship with the father than with the mother, that he still wanted to spend a limited amount of time with his mother, and that his preference was to be with his father. The two younger children both expressed the desire for an alternate week arrangement. The court clearly considered relevant factors in determining custody, and its use of in camera interviews was not error. Helen S. K. v. Samuel M. K., 288 P.3d 463 (Alaska 2012).

Mother was properly awarded child custody because, inter alia, the teenage child’s expressed preference to live with the mother was given considerable weight. Thomas G. v. Sonya G., — P.3d — (Alaska June 24, 2015), cert. denied, 577 U.S. 1079, 136 S. Ct. 834, 193 L. Ed. 2d 741 (U.S. 2016)(memorandum decision).

Superior court factored in a child’s preference to live with his mother under the best interest analysis, but did not give it a lot of weight in ordering that the father have custody; the child believed that the separation was harder on the mother and had more freedom with the mother than with the father. The superior court did not substitute findings in a separate custody proceeding for its findings in the present case. Wells v. Barile, 358 P.3d 583 (Alaska 2015).

Superior court did not abuse its discretion by not explicitly considering the children's custody preference given their young ages and the wife's encouragement that they lie to various authorities about the husband's conduct. Schaeffer-Mathis v. Mathis, 407 P.3d 485 (Alaska 2017).

Child's educational needs. —

Superior court did not abuse its discretion in prioritizing a child’s educational needs when making the decision to award custody to the child’s father; evidence showed that the mother was unable to meet the child’s educational needs whereas the child was making progress in school under his father’s care. Michele M. v. Richard R., 177 P.3d 830 (Alaska 2008).

Age of children is only one factor to be considered. —

Although the age of the children in a custody dispute is one factor that may be considered by the trial court in its determination of the best interests of the child, it is only one factor, to be weighed with many others. Johnson v. Johnson, 564 P.2d 71 (Alaska 1977), cert. denied, 434 U.S. 1048, 98 S. Ct. 896, 54 L. Ed. 2d 800 (U.S. 1978).

Constitutionality of section in specifying “religious needs” as consideration. —

This section in specifying that the “religious needs” of the child may be considered in awarding custody, is not unconstitutional on its face. Bonjour v. Bonjour, 592 P.2d 1233 (Alaska 1979).

This section is limited to cases where particular religious practices or beliefs pose a substantial threat of or would result in actual physical, emotional, or mental injury to the child or will otherwise have a harmful effect on the child in violation of valid state statutes. Bonjour v. Bonjour, 592 P.2d 1233 (Alaska 1979).

In addition, the court may consider the actual religious needs of a mature child. Bonjour v. Bonjour, 592 P.2d 1233 (Alaska 1979).

This section, insofar as it permits a court to consider the “religious needs” of a minor as an aspect of the child’s “best interest,” does not infringe upon constitutionally protected rights. However, the court must make a finding that the child has actual, not presumed, religious needs, and that one parent will be more able to satisfy those needs than the other parent. Bonjour v. Bonjour, 592 P.2d 1233 (Alaska 1979).

“Actual religious needs”. —

By actual religious needs, the supreme court refers to the expressed preference of a child mature enough to make a choice between a form of religion or the lack of it. Bonjour v. Bonjour, 592 P.2d 1233 (Alaska 1979).

Section not limited to consideration of formal religious needs. —

In order to avoid running afoul of the establishment clause, this section cannot be limited to consideration of the formal religious needs of the child. Bonjour v. Bonjour, 592 P.2d 1233 (Alaska 1979).

Court must retain strict neutrality. —

So long as a court makes findings as to a child’s actual needs respecting religion, the court may consider such needs as one factor in awarding custody. In such consideration the court, however, may not substitute its own preferences, either for or against a particular type of religious observance, but must retain a strict neutrality. Bonjour v. Bonjour, 592 P.2d 1233 (Alaska 1979).

Reliance on parties' religious affiliations held improper. —

The trial court’s reliance on the religious affiliations of the parties, in the absence of a showing of actual religious needs of the child, constitutes the improper use of a criterion. Bonjour v. Bonjour, 592 P.2d 1233 (Alaska 1979).

The trial court’s reliance in determining custody on findings that the father and his second wife were “devout Protestants” and members of an “organized religious community,” while the mother’s interest in religion was “passive,” was impermissible under the establishment clause of the first amendment, since there was no secular purpose in the trial court’s action, the primary effect of such action was to advance religion, and the action fostered excessive government entanglement with religion. Bonjour v. Bonjour, 592 P.2d 1233 (Alaska 1979).

Mother's mental health not considered. —

Award of sole legal and primary physical custody of the parties’ child to the mother was not proper where the court did not thoroughly consider and resolve the significant issue of the mother’s mental health; the same judge had found two years earlier that she posed a risk of harm to the child and should not have unsupervised visitation absent a positive psychological examination. John N. v. Desiree N., — P.3d — (Alaska May 8, 2013), (memorandum opinion).

Marital status of parent improperly considered. —

Where trial court factored in the mother’s plan to leave her job and move out of state, relying on her boyfriend for support for herself and the children, the court’s comments about the boyfriend’s lack of commitment to the mother and children, and the potential instability of the relationship, it was evident from the court’s comments that the court relied on the impermissible factor of marital status in awarding custody of the children to the father. The comments went beyond mere evaluation of the mother’s financial stability and ability to provide a stable environment for the children. Livengood v. Livengood, — P.3d — (Alaska Mar. 28, 2012), (memorandum opinion).

Effect of remarriage of one parent. —

Custody awards may not be based on the assumption that a divorced parent who remarries can provide a better home than an otherwise equally competent parent who remains single. West v. West, 21 P.3d 838 (Alaska 2001).

Bicultural situations. —

Where the differing life-styles flowing from two cultures have significance in determining which parent could provide the best possible parent-child relationship, it is inappropriate to decide the custody issue on the basis of cultural assumptions which are not borne out by the record. Carle v. Carle, 503 P.2d 1050 (Alaska 1972).

It is not permissible, in a bicultural context, to decide a child’s custody on the hypothesis that it is necessary to facilitate the child’s adjustment to what is believed to be the dominant culture. Such judgments are not relevant to the determination of custody issues. Rather, the focus should be on the fitness of the parent and the parent’s ability to accord the child the most meaningful parent-child relationship. Carle v. Carle, 503 P.2d 1050 (Alaska 1972).

Tribal court's jurisdiction limited to custody determination. —

Trial court correctly ruled that the issue of child support was never referred to the Native Village of Northway tribal court following the referral of a child custody dispute between the Native Alaskan parties, and that the Alaska Child Support Enforcement Division could enforce the trial court’s child support order. John v. Baker, 125 P.3d 323 (Alaska 2005).

Stability is a relevant factor for the trial court to consider in awarding custody of a child, even though it is not explicitly listed in subsection (c). McDanold v. McDanold, 718 P.2d 467 (Alaska 1986).

Superior court did not abuse its discretion in its reconsideration of the stability factor where the superior court determined on remand that the stability factors favored the mother rather than the father, and thus, the court’s remarks related to the remand instructions were irrelevant. Stephanie W. v. Maxwell V., 319 P.3d 219 (Alaska 2014).

Desirability of maintaining continuity. —

Paragraph (c)(5) requires the court to look to the desirability of maintaining the continuity of the care of the children when making decisions regarding child custody. Hamilton v. Hamilton, 42 P.3d 1107 (Alaska 2002).

Relationship with parent and native Alaskan heritage. —

Trial court’s finding in primary physical custody dispute was held proper based on evidence that child was better able to establish a loving and open relationship with the parent to whom custody was awarded, and that Sitka, that parent’s residence, was the better place for the child because of the child’s Native Alaskan heritage. Van Sickle v. McGraw, 134 P.3d 338 (Alaska 2006).

Relocation held legitimate.—

Superior court's finding that the mother's move was legitimate was not clearly erroneous; she was moving closer to family, seeking employment, and providing the child new educational and extracurricular opportunities, and her move was not motivated by a desire to prevent the father from interacting with his child. Bruce H. v. Jennifer L., 407 P.3d 432 (Alaska 2017).

Father moving to Germany. —

Where father was being transferred to Germany, the trial court did not err in concluding that granting custody to mother would provide more stability and continuity for their children. Tompkins v. Tompkins, 961 P.2d 419 (Alaska 1998).

Out-of-state move held appropriate. —

Court properly allowed a mother to retain custody of the children if she completed a planned out-of-state move due to the nature of her graduate program, the availability of family support while she returned to school, and the fact that she had better-than-average parenting abilities. In particular, the father did not seem to appreciate that the children had special needs related to their speech deficits. Veselsky v. Veselsky, 113 P.3d 629 (Alaska 2005).

Mother had primary physical custody and father was awarded visitation. The mother’s wish to move to the Pacific Northwest to be closer to her ailing parents and to find work for her husband was a substantial change in circumstances that required modification of child custody. The older child’s close relationship with her parents, her fear of having to stay in Alaska without her mother, and concern that the child would become depressed if removed from her mother’s custody constituted best interest factors that favored granting custody to the mother. St. Denny v. Hunter, — P.3d — (Alaska Mar. 3, 2010), (memorandum opinion).

Superior court did not err under subsection (c) in awarding primary physical custody to the mother and joint legal custody to both parents because the mother was willing to facilitate a close and continuing relationship between the children and the father; her reasons for relocating to Alaska were legitimate and not primarily motivated by a desire to hinder the father’s visitation. Ronny M. v. Nanette H., 303 P.3d 392 (Alaska 2013).

Trial court did not err in awarding a mother primary physical custody of the parties' children and in concluding that it was in the children's best interest to relocate with the mother to another state because the court found that the mother had the ability to provide superior emotional stability and had been the children's primary caregiver, that the mother's reason for the move was legitimate, and that the father had the resources to exercise liberal visitation and would continue to be involved in the children's lives. Brett M. v. Amanda M., 445 P.3d 1005 (Alaska 2019).

International travel during visitation. —

Mother’s request to limit a father’s international visitation to countries that had ratified the Hague Convention on the Civil Aspects of International Child Abduction was properly denied where there was no evidence to support the mother’s concern that travel to a non-ratifying country was a threat to the safety and return of the child. Moore v. Moore, 349 P.3d 1076 (Alaska 2015).

Decision aimed at fostering best parent-child relationships possible. —

Where the trial court found that the mother was having difficulty fostering an open relationship with the father, it was not error for the court to find that it was in the best interests of the children to remain in Alaska, with their father having primary custody, if the mother moved to Arizona. Silvan v. Alcina, 105 P.3d 117 (Alaska 2005).

Superior court did not abuse its discretion in determining on remand that the continuing relationship factor favored the father where it determined that the mother had not presented sufficient evidence in support of her allegation that the father manufactured methamphetamine in front of the child to warrant removing the unfounded allegation from consideration in the continuing relationship factor given that the only evidence was the mother’s testimony that she observed a chemical smell on the father’s clothing. Stephanie W. v. Maxwell V., 319 P.3d 219 (Alaska 2014).

Parental cooperation. —

Finding that a father was able to encourage the child’s relationship with the mother was proper because the parents’ collaborative history was more probative of their future relationship than the accusations they made against each other in the context of litigation. Harris v. Governale, 311 P.3d 1052 (Alaska 2013).

Parent's past. —

While a parent’s past is not determinative, it can be considered in evaluating current stability and parenting ability in the awarding of child custody. McDanold v. McDanold, 718 P.2d 467 (Alaska 1986).

Fact of mother’s adulterous relationship is of importance in a child custody case only as it may affect the best interests of the child. Bonjour v. Bonjour, 566 P.2d 667 (Alaska 1977).

Mother’s bearing of children out of wedlock or her instability in terms of relationships should be determinative in a child-custody dispute only where such conduct adversely affects the child or the mother’s parenting abilities. Craig v. McBride, 639 P.2d 303 (Alaska 1982).

Evidence of lifestyle, habits, or character of custody claimant is relevant only to the extent that it may be shown to affect the person’s relationship to the child. Britt v. Britt, 567 P.2d 308 (Alaska 1977), overruled in part, Evans v. McTaggart, 88 P.3d 1078 (Alaska 2004).

Protective orders. —

Wife claimed that a trial court erred in not applying subsection (g) before ordering joint legal custody of the couple’s daughter; however, additional determinations needed to be made as to whether the husband had violated a protective order. Parks v. Parks, 214 P.3d 295 (Alaska 2009).

Domestic violence between parents. —

Where there were incidents of domestic violence in a relationship between two unmarried parents who were involved in a custody dispute, the court should have addressed the domestic violence exception contained in this section and the domestic violence provisions and presumption set out in subsections (g)-(i). Puddicombe v. Dreka, 167 P.3d 73 (Alaska 2007).

In making the decision to award primary custody to a child’s father, the superior court was within its discretion in finding that the child was not going to an abusive home and, while no evidence showed that the father was abusive to the child and the evidence tying him to other contemporary instances of abuse was weak, a question still remained whether the father should have been subject to the presumption found in subsection (g); thus, it was plain error for the superior court not to further determine whether the father’s previous acts of domestic violence against his first wife constituted a history of perpetrating domestic violence under subsection (h). Michele M. v. Richard R., 177 P.3d 830 (Alaska 2008).

Trial court did not err in finding a lack of evidence of domestic violence in the proposed custodial household where the father’s girlfriend’s conduct as described in the protective order application and the trial testimony was not assault, custodial interference, or kidnapping, and the finding that there was no history of domestic violence by either party was not clearly erroneous. Jaymot v. Skillings-Donat, 216 P.3d 534 (Alaska 2009).

The definition of “serious physical injury” in Title 11 applies to this section. Parks v. Parks, 214 P.3d 295 (Alaska 2009).

Superior court’s factual findings were sufficient to trigger the presumption against awarding custody to a parent who had a history of perpetrating domestic violence; the mother credibly testified to two incidents of domestic violence, and the father did not rebut the presumption by completing an intervention program for batterers. Misyura v. Misyura, 242 P.3d 1037 (Alaska 2010).

The domestic violence factor in (c)(6) applied in this case where there were mutual acts of violence between the parents, with the mother’s acts being more numerous. The court appropriately considered this factor, and the record supported the finding that there was not a danger of risk or harm to the parents or child, and that both parties matched each other in their weakness at fostering a relationship with the other parent. Weinberger v. Weinmeister, 268 P.3d 305 (Alaska 2012).

Superior court did not clearly err in discounting wife's evidence of domestic violence where the court specifically found that all of the wife's allegations that the husband was physically or emotionally abusive were not credible and indicated that it shared the custody investigator's serious concerns that the wife had instructed one of the children to lie about domestic violence in the home, and the mother pointed to nothing in the record showing the findings to be clearly erroneous. Schaeffer-Mathis v. Mathis, 407 P.3d 485 (Alaska 2017).

Award of joint custody despite evidence of abuse. —

It was error to order joint legal custody and shared physical custody after a finding that the father had a history of domestic violence. The court failed to address this section, which creates a rebuttable presumption against joint legal or physical custody to a parent with a history of domestic violence against the other parent. Wee v. Eggener, 225 P.3d 1120 (Alaska 2010).

Sexual abuse of children. —

Given that the trial court accepted as fact the father’s sexual abuse of his older children, it was an abuse of discretion to find that it was in the child’s best interests to be placed in the custody of the father without ample evidence of his rehabilitation. Horton v. Horton, 519 P.2d 1131 (Alaska 1974).

Excessive dominance by parent. —

Trial court properly awarded custody of daughter to mother, where the record evinced father’s need to dominate and control in relationships as an outstanding personality trait impairing his ability to effectively nurture and raise children. Dingeman v. Dingeman, 865 P.2d 94 (Alaska 1993).

Discipline. —

Finding that a father and a mother were equally able to meet their child’s needs was proper where there was no evidence that the father mischaracterized his disciplinary methods or that his discipline adversely affected his ability to care for the child’s emotional needs or should otherwise weigh against him in the best interests analysis. Harris v. Governale, 311 P.3d 1052 (Alaska 2013).

Issue preclusion. —

Husband in a divorce matter claimed the trial court erred in limiting visitation based on a prior protective order arising from alleged domestic violence; the doctrine of issue preclusion could not be invoked to establish an act of domestic violence where the domestic violence supporting a prior protective order was stipulated to and not litigated. Morris v. Horn, 219 P.3d 198 (Alaska 2009).

Unique facts of each case to be weighed. —

The legislative intent is that the trial court decide custody matters by weighing the unique facts in each case to determine the best interests of the child. Johnson v. Johnson, 564 P.2d 71 (Alaska 1977), cert. denied, 434 U.S. 1048, 98 S. Ct. 896, 54 L. Ed. 2d 800 (U.S. 1978).

Determination of the child’s best interests must turn on a balancing of the unique facts of each case rather than on outmoded presumptions. Wetzler v. Wetzler, 570 P.2d 741 (Alaska 1977).

The weight to be accorded a child’s preference in custody disputes depends to some extent on the basis and reasons for that preference. Lacy v. Lacy, 553 P.2d 928 (Alaska 1976).

Custody decrees are not subject to modification merely because a child has developed a preference for one parent over the other. But where it would appear that the preferences of the children are of long-standing duration, it was incumbent upon the superior court to hear the children’s testimony regarding the circumstances of their preferences. Once the court has heard such testimony, it is then to determine whether the children’s preferences, when considered with all other relevant factors, are sufficient to warrant the determination that it is in the best interests of the minor children to modify the decree’s custody provisions. Lacy v. Lacy, 553 P.2d 928 (Alaska 1976).

Parental custody is preferable and only to be refused where clearly detrimental to the child. Turner v. Pannick, 540 P.2d 1051 (Alaska 1975); Britt v. Britt, 567 P.2d 308 (Alaska 1977), overruled in part, Evans v. McTaggart, 88 P.3d 1078 (Alaska 2004).

Unless the superior court determines that a parent is unfit, has abandoned the child, or that the welfare of the child requires that a nonparent receive custody, the parent must be awarded custody. Turner v. Pannick, 540 P.2d 1051 (Alaska 1975).

Between a parent and a nonparent, the parent is to be preferred unless placing custody with him or her would be detrimental to the child. Veazey v. Veazey, 560 P.2d 382 (Alaska 1977).

The parent is entitled to a preference over the grandparents unless it is clearly shown that the parent is unfit for the trust, or that the welfare of the child requires it to be in the custody of the grandparents. Bass v. Bass, 437 P.2d 324 (Alaska 1968).

In Alaska the test applicable to suit by biological parent to regain custody of child from third party is that the parent is entitled to a preference over a nonparent unless it is clearly shown that the parent is unfit for the trust or that the welfare of the child requires it to be in the custody of a third party. Turner v. Pannick, 540 P.2d 1051 (Alaska 1975).

No presumption in favor of person with whom child has most recently and continuously resided. —

While there might be some preference for leaving the child in the custody of the person with whom he has most recently and continuously resided, the supreme court will not establish such a presumption lest it lead to pre-hearing maneuvering for possession of the child. Carle v. Carle, 503 P.2d 1050 (Alaska 1972).

Psychological effects of separation. —

Superior court did not err when it granted custody of a child to its caregivers rather than allowing her grandparents to adopt her where the issue was not merely primary caregiving, but whether removing the child from the primary custody of the people with whom she had spent 21 of her 24 months would be unnecessarily traumatic for her, especially since she had already lost one set of parents; the superior court carefully questioned in voir dire each expert who testified on child psychology about the possible effects on the child of being separated from the caregivers and overruled objections to such questions when asked. Adoption of L.E.K.M., 70 P.3d 1097 (Alaska 2003).

Time spent with parent during appeal of custody order. —

Where one parent obtained custody pursuant to a court order but on appeal the order was vacated and remanded, on remand the trial court could consider the quality and duration of the time the child spent with each parent during the pendency of the appeal in deciding anew the child-custody issue. Craig v. McBride, 639 P.2d 303 (Alaska 1982).

Parent's ability to care for child. —

Superior court did not abuse its discretion in finding that the factor concerning each parent’s ability and desire to meet the children’s needs favored the mother given evidence that the father did not perform tasks when he had the opportunity. Beals v. Beals, — P.3d — (Alaska Mar. 25, 2015).

Superior court did not clearly err in finding that both parents were capable of meeting the children's needs but that the father was more motivated than the mother to focus on the children's needs given the mother's decisions to involve the children in the divorce and take personal vacations during her custodial time. Schaeffer-Mathis v. Mathis, 407 P.3d 485 (Alaska 2017).

Supervised visitation. —

While the superior court could have been more precise in articulating what it expected the father to do in order to remove the requirement for supervised visitation, a solution was for him to obtain a psychological assessment. If the psychologist was unclear about what issues were to be addressed, the father could move for clarification, and if the assessment revealed no mental health issues requiring treatment or counseling, he could move for unsupervised visitation. Given this, the superior court adequately articulated a plan. Matthew P. v. Gail S., 354 P.3d 1044 (Alaska 2015).

Denial of supervised visitation to a father was appropriate because the superior court repeatedly advised the father, who had a history of domestic violence, that the mother had no obligation to allow visitation until the father provided proof of participation in both a batterers' intervention program and a parenting course. However, the father never completed a batterers' intervention program and at trial admitted that the father was not then participating in one. Frederico A. v. Francisca A., — P.3d — (Alaska Dec. 28, 2016) (memorandum decision).

When determining how “domestic living partner” should be interpreted and applied, when considering whether a parent's visitation should be restricted under AS 25.24.150(j) or to apply a presumption against the parent's custody under AS 25.24.150(g) due to the parent's acts of domestic violence, there is a requirement that the perpetrator and victim lived in the same household, but “lived together” must be given a fairly relaxed meaning. Timothy W. v. Julia M., 403 P.3d 1095 (Alaska 2017).

Trial court's findings on the status of the father's girlfriend as a domestic living partner when ordering the father's supervised visitation due to domestic violence against the girlfriend, consisting of criminal trespass and coercion, were insufficient because (1) the parties had to reside together to be domestic living partners, and (2) the court's findings did not determine when this status began or ended or explain how the status applied when the father was not permitted in the girlfriend's residence. Timothy W. v. Julia M., 403 P.3d 1095 (Alaska 2017).

Shared parental custody between parent and nonparent. —

The policy supporting shared parental custody applies equally when the custody dispute arises between a parent and a nonparent. Carter v. Novotny, 779 P.2d 1195 (Alaska 1989).

Unsupervised visitation by parent with history of abuse. —

While it was error to order joint legal custody and shared physical custody after finding that the father had a history of domestic violence toward the child’s mother, award of unsupervised visitation to the father was proper where the father did not abuse drugs or alcohol and posed no danger of harm to his son. Wee v. Eggener, 225 P.3d 1120 (Alaska 2010).

Visitation conditions upheld. —

Trial court did not abuse its discretion in placing conditions on the mother's visitation; the custody investigator testified she was not making any psychological diagnosis but was drawing on her experience to recommend that the mother seek treatment, and the mother's argument that the investigator was unqualified to recommend a specific type of therapy was conclusory and did not show any abuse of discretion. Joy B. v. Everett B., 451 P.3d 365 (Alaska 2019).

Disproportionate weight given to grandparent involvement. —

In this custody modification case, the lower court abused its discretion in assigning disproportionate weight to grandparent involvement as a factor in the father's favor; there was no evidence that the child's contact with her grandparents would be limited while the mother had custody, so it was purely speculative for the lower court to assume that securing grandparent involvement required giving a higher share of custody to the father. Weathers v. Weathers, 425 P.3d 131 (Alaska 2018).

Visitation by grandparents. —

Subsection (a) of this section does not require the trial court to specify why visitation by grandparents is in the best interests of the children. Instead, it merely states that the trial court may award such rights if they are, in fact, in the best interests of the children. Brown v. Brown, 914 P.2d 206 (Alaska 1996).

Power to appoint guardian ad litem. —

In contested custody cases the trial court, in its discretion, is empowered to appoint a guardian ad litem to represent the interests of the minor child. Carle v. Carle, 503 P.2d 1050 (Alaska 1972).

Right to custody hearing. —

A father’s right to a hearing on child custody was not satisfied by a hearing in a domestic violence proceeding at which an award of temporary custody was made, since the hearing was held without notice that permanent custody was at issue and it did not satisfy the hearing requirements for permanent custody modification. Lashbrook v. Lashbrook, 957 P.2d 326 (Alaska 1998).

Oral custody order. —

In a divorce proceeding, the trial court did not violate the father’s due process rights in orally issuing temporary custody orders during a scheduling conference because this section does not include a hearing requirement; precedent did not imply that a one-month temporary custody order largely extending the status quo required notice and a hearing under principles of due process. Berry v. Berry, 277 P.3d 771 (Alaska 2012).

Custody award irrespective of fault. —

The trial judge may make a custody award irrespective of the fault of either party only if it would be manifestly improper to do otherwise. Harding v. Harding, 377 P.2d 378 (Alaska 1962).

Applicability of 2004 amendment. —

The 2004 amendment of this section by SLA 2004, ch. 111, § 6, which created a rebuttable presumption that a parent who has a “history of perpetrating domestic violence” may not be awarded custody of a child, was inapplicable to a child custody case in which the evidence had closed before the effective date of the amendment (July 1, 2004). Van Sickle v. McGraw, 134 P.3d 338 (Alaska 2006).

Admissibility of child welfare report. —

Where the parties acquiesced in the court’s order requesting a report from the Department of Health and Welfare, and there was substantial other evidence to sustain the court’s award of temporary custody to the paternal grandparents, the court did not err in considering the report without admitting it into evidence. Bass v. Bass, 437 P.2d 324 (Alaska 1968).

Parents have standing to challenge determination of child's best interest. —

Whether or not a constitutional due-process right of the child is involved, parents have standing to challenge on appeal a determination of what is in the best interest of the child. Carle v. Carle, 503 P.2d 1050 (Alaska 1972).

Change in nature of proceeding. —

Where superior court transformed proceeding which initially was contemplated to be one that would determine the question of child’s interim custody for the impending school year into one that decided the question of permanent custody, proceeding did not afford basic fairness to parent of child. Cushing v. Painter, 666 P.2d 1044 (Alaska 1983).

Custody improperly awarded as sanction against parent. —

Where the court awarded custody of son to father as a sanction against mother without undertaking a best interests of the child analysis, the award had to be vacated and the matter remanded for the purpose of redetermining custody based upon a best interests of the child analysis, with appropriate findings of fact that addressed all relevant criteria of subsection (c). Hakas v. Bergenthal, 843 P.2d 642 (Alaska 1992).

Appellate court reversed a child custody award in favor of the father, because the trial court applied an incorrect standard in reaching its final custody determination and considered one statutory best interests factor to the exclusion of all others. Smith v. Weekley, 73 P.3d 1219 (Alaska 2003).

Shared custody upheld. —

In a dissolution of marriage proceeding, the court did not err by awarding shared custody of the child when he reached his fifth birthday where the father showed a desire to provide for the child and a willingness to change to accommodate the child’s needs. Schmitz v. Schmitz, 88 P.3d 1116 (Alaska 2004).

In a dissolution of marriage proceeding, because the mother had notice of the proposed custody arrangement and because she had an opportunity to be heard on the matter, the superior court’s order awarding shared custody of her child to the father when the child reached his fifth birthday did not violate the mother’s due process rights. Schmitz v. Schmitz, 88 P.3d 1116 (Alaska 2004).

Superior court neither clearly erred nor abused its discretion when it awarded joint legal and shared physical custody because it weighed conflicting evidence about the father's understanding of sexual abuse allegations, made a credibility determination, and awarded custody based on that determination; given the competing testimony, and absent clear evidence of the timing of the girl's injury, the mother had not established that it occurred during the father's custodial time. Thompson v. Thompson, 454 P.3d 981 (Alaska 2019).

Shared custody rejected. —

Finding that shared physical custody was not in the child’s best interests was proper; the court’s evaluation of the child’s emotional needs was not an abuse of discretion, as the court was free to judge witness credibility and reject the custody investigator’s recommendation in light of a doctor’s testimony. In addition, the superior court found that the factor concerning one’s willingness to allow a close relationship with the other parent favored the mother. Matthew P. v. Gail S., 354 P.3d 1044 (Alaska 2015).

B.Review

The scope of review in child custody cases is relatively narrow. De Hart v. Layman, 536 P.2d 789 (Alaska 1975).

Standard on review. —

In custody questions findings of fact shall not be set aside unless clearly erroneous. Bass v. Bass, 437 P.2d 324 (Alaska 1968).

The supreme court will reverse determinations of the trial court only where it is convinced that the findings of the trial court are clearly erroneous and the record indicates that an abuse of discretion has occurred. King v. King, 477 P.2d 356 (Alaska 1970); Carle v. Carle, 503 P.2d 1050 (Alaska 1972); Horutz v. Horutz, 560 P.2d 397 (Alaska 1977); Faro v. Faro, 579 P.2d 1377 (Alaska 1978); Bonjour v. Bonjour, 592 P.2d 1233 (Alaska 1979).

On appeal the task of the supreme court is to ascertain whether or not the trial court misapplied the broad discretion vested in it in regard to determination of custody questions, and whether the court’s findings in respect to custodial issues are clearly erroneous. De Hart v. Layman, 536 P.2d 789 (Alaska 1975).

When called upon to decide whether the trial court abused its discretion in applying the best interests test, the supreme court must at times determine whether the trial court assigned “too great a weight to some factors while ignoring others, perhaps by elevating the interests of one of the parties to the dispute above that of the child, perhaps by making a clearly erroneous finding with respect to some material issue.” Horutz v. Horutz, 560 P.2d 397 (Alaska 1977).

The supreme court’s standard of review in custody cases is that of “abuse of discretion.” Findings of fact are reviewed against a “clearly erroneous” standard. Layman v. De Hart, 560 P.2d 1206 (Alaska 1977).

The supreme court must determine on review “whether that discretion has been abused, perhaps by assigning too great a weight to some factors while ignoring others.” Johnson v. Johnson, 564 P.2d 71 (Alaska 1977), cert. denied, 434 U.S. 1048, 98 S. Ct. 896, 54 L. Ed. 2d 800 (U.S. 1978).

The award of custody is committed to the discretion of the trial court and is reversible only for an abuse of that discretion. Wetzler v. Wetzler, 570 P.2d 741 (Alaska 1977).

Review of visitation privileges is based upon the same standard applied in other custody matters, that is, the supreme court needs only to determine whether the trial court abused its discretion in fashioning suitable visitation rights. Faro v. Faro, 579 P.2d 1377 (Alaska 1978).

Trial court did not err in denying the mother’s motion to modify custody because it addressed the factors listed in subsection (c), and its findings provided ample indication of the considerations upon which its decision was based; the mother pointed to no evidence to suggest that the child’s best interests would be better served if she was appointed sole legal custodian. Walker v. Hagberg, — P.3d — (Alaska Feb. 6, 2013), (memorandum opinion).

In awarding sole legal custody of the parties’ child to the husband, based on the evidence presented at trial it was not error to find that the wife had engaged in domestic violence and that the husband did not. McGrady v. McGrady, — P.3d — (Alaska Mar. 20, 2013), (memorandum opinion).

Custody award on conflicting evidence. —

The fact that an award of custody is based upon extremely conflicting evidence does not of itself show an abuse of discretion. Harding v. Harding, 377 P.2d 378 (Alaska 1962); Bass v. Bass, 437 P.2d 324 (Alaska 1968).

Award within discretion of the superior court. —

Custody award was within the discretion of the superior court where it relied, under subsection (c) of this section, on the fact that the mother had been the children’s primary caregiver on a full-time basis and was an excellent mother. Odom v. Odom, 141 P.3d 324 (Alaska 2006).

The court properly set limitations on a father’s communications with the mother where the father had committed three domestic violence crimes against the mother in the five years preceding the order. Although the trial court found that he did not pose a danger of mental or physical injury to the child, it was not required to ignore his past domestic violence crimes against the mother, his controlling attitudes, or his efforts to reunite with the mother when she did not wish to do so. Kenneth S. v. Beulah E., — P.3d — (Alaska Aug. 26, 2015).

Superior court, which awarded a wife sole legal and primary physical custody of the parties' children, did not clearly err in finding that the husband had not internalized the lessons a batterers' intervention program taught, did not acknowledge his wrongdoings, and was unable to take responsibility for his actions in any meaningful way. It was not an abuse of discretion for the superior court to weigh these facts against the husband in its custody decision. Pasley v. Pasley, 442 P.3d 738 (Alaska 2019).

Emphasis on one factor held not erroneous. —

In a custody proceeding, the court’s findings were not deficient as a matter of law where the court considered and discussed evidence relating to most of the statutory custody factors that were actively disputed; the court’s ultimate decision to give determinative weight to one of the factors, and the consequent emphasis it placed on that factor did not, standing alone, establish that the court ignored the remaining factors or gave them inadequate weight. Ebertz v. Ebertz, 113 P.3d 643 (Alaska 2005).

When case must be remanded. —

Where the supreme court is unable to conclude with any degree of certainty that custody was decided without taking into consideration impermissible factors, the case must be remanded for further proceedings. Carle v. Carle, 503 P.2d 1050 (Alaska 1972).

If the supreme court finds that the trial court has used an impermissible criterion in its determination, it will remand the case for a decision in which proper factors are considered. Johnson v. Johnson, 564 P.2d 71 (Alaska 1977), cert. denied, 434 U.S. 1048, 98 S. Ct. 896, 54 L. Ed. 2d 800 (U.S. 1978); Bonjour v. Bonjour, 592 P.2d 1233 (Alaska 1979).

Custody ruling upheld. —

Superior court did not abuse its discretion by ordering joint legal custody because it did not conclude that the mother and the father were incapable of communicating; the superior court believed that the parties would be capable of communicating in the future and instructed them that in the future, communication between the parents regarding the children's medical appointments would occur in writing via email. Lewis G. v. Cassie Y., 426 P.3d 1136 (Alaska 2018).

The superior court did not err in failing to award joint legal custody of child. Smith v. Smith, 673 P.2d 282 (Alaska 1983).

The majority of the parties’ final custody order was proper. The superior court properly considered the parties’ current circumstances and explicitly noted that if and when the father returned to court, a best interests analysis would be applied. Jack C. v. Tally C., 284 P.3d 13 (Alaska 2012).

Superior court did not abuse its discretion in weighing the factors used to determine the best interests of the child because its conclusions regarding the mother’s emotional connection to the child and that the stability factor favored neither parent were supported by its factual findings, which in turn were supported by the evidence. Snider v. Snider, 357 P.3d 1180 (Alaska 2015).

The superior court properly considered the AS 25.24.150(c) factors, including a rejection of the child's preference, because of the father's inappropriate influence and concern over the father's ability and opportunity to commit domestic violence. Michael M. v. Catherine T., — P.3d — (Alaska Oct. 19, 2016) (memorandum decision).

Trial court did not abuse its discretion in granting the mother primary physical custody, as she had provided consistent care for the child, provided a stable environment, and promoted a relationship between the child and the father. Judd v. Burns, 397 P.3d 331 (Alaska 2017).

Father had sole legal and physical custody of the couple’s son, while the mother was given ample visitation during summer vacation and holidays. At the beginning of summer vacation the mother picked up the child but did not provide detailed contact information as required by the order. She also failed to allow telephonic visitation between father and son as required. In response to the father’s expedited motion to resolve this issue, the mother was ordered to give the son a telephone and allow the son to have telephonic contact with the father. This subsequent order was proper, and served to interpret and clarify the original order. del Rosario v. Clare, 378 P.3d 380 (Alaska 2016) (memorandum decision).

Trial court's award of child custody to a father was upheld because the court appropriately weighed the stability of their daughter's relationship with her mother, who had been her primary caretaker, against the likelihood that the mother would interfere with a relationship between the daughter and the father. Roman v. Karren, 461 P.3d 1252 (Alaska 2020).

Award of joint legal custody with father having primary physical custody for the school year in Alaska and mother having summers with the child in New York was appropriate because the father worked during the summer as a commercial fisherman and the mother worked as a teacher, Alaska was the child's primary residence, the mother left Alaska with the child without intention of returning, the father received counseling for substance abuse, and the father was the parent most willing to promote the child's relationship with the other parent. Marschke v. Dunbar, — P.3d — (Alaska July 21, 2021).

Superior court in a divorce action did not abuse the court's discretion in awarding the wife conditional sole legal custody and primary physical custody of the parties' child because the court considered the wife's violations of the court's orders, the wife's animosity towards the husband, and the wife's unwillingness to foster a relationship between the husband and the child. The court also found that there was insufficient evidence of domestic violence. Chichenoff v. Blondin, — P.3d — (Alaska Sept. 15, 2021) (memorandum decision).

Custody ruling upheld. —

Decision awarding shared custody to the two women formerly living together as unmarried domestic partners was affirmed because the court applied the correct third-party custody framework and the finding that the child would suffer clear detriment if he were placed solely in the biological mother’s custody was not clearly erroneous. Rosemarie P. v. Kelly B., 504 P.3d 260 (Alaska 2021).

No abuse of discretion by trial court. —

In awarding sole legal and primary physical custody of the parties’ five children to the mother, the superior court did not abuse its discretion in its determination that the best way to address the parties’ communication difficulties, while looking out for the children’s best interests, was by a grant of sole legal custody to one parent. Dobson v. Dobson, — P.3d — (Alaska Aug. 6, 2014)(memorandum decision).

Trial court did not err by denying the mother’s request to reconsider ordering supervised visitation in Alaska because it found that the mother had engaged in multiple acts of domestic violence, had been deceitful on multiple occasions, and removed the child from Alaska against court orders. Nina T. v. Michael P., — P.3d — (Alaska July 13, 2022).

Abuse of discretion by trial court. —

The trial court abused its discretion in not awarding both parents shared custody of their child where the evidence indicated that the only area of irreconcilable conflict between the parents concerned what form of day care would be best for their child; resolution of the day care issue does not require denial of joint-legal custody, which the Alaska legislature recognizes as the favored course. Bell v. Bell, 794 P.2d 97 (Alaska 1990).

Where the mother was the child’s primary caregiver and sole custodian (apart from visitation) after the parties separated, and given the opinions of custody investigators that, in the interests of continuity and stability the child should remain with the mother, it was an abuse of discretion to change the status quo and award the child to the father. Vachon v. Pugliese, 931 P.2d 371 (Alaska 1996).

Proportional custody determination held abuse of discretion. —

In this custody modification case, the superior court offered no analysis as to how a 59/41 custody determination achieves the benefit contemplated; the superior court assigned disproportionate weight to some factors with little analysis, while ignoring or improperly weighing key factors in the case, and remand was required. Weathers v. Weathers, 425 P.3d 131 (Alaska 2018).

III.Custody Modification

A.In General

All custody awards are subject to motions for modification. Britt v. Britt, 567 P.2d 308 (Alaska 1977), overruled in part, Evans v. McTaggart, 88 P.3d 1078 (Alaska 2004).

A motion to modify custody may be made at any time during the minority of the child involved, and the superior court has an obligation to consider such a request. Cooper v. State, 638 P.2d 174 (Alaska 1981).

Motion made immediately after decision in divorce case. —

A motion for custody modification, which was made immediately after the court’s decision in a contested divorce case, was tantamount to a motion for a new trial on the custody issue. King v. King, 477 P.2d 356 (Alaska 1970).

Sufficient notice of hearing. —

A custodial parent had sufficient notice that a hearing would involve modification of custody, not simply the establishment of a visitation schedule, where it was shown that he was aware of his former wife’s intention to seek equal time with the children. Siekawitch v. Siekawitch, 956 P.2d 447 (Alaska 1998).

Mother not denied due process.—

In this custody modification case, the mother was not denied due process, as case law put her on notice that extended family could play a role in the best interests analysis, she had adequate notice that grandparent involvement could be considered, and she was given the opportunity to respond. Weathers v. Weathers, 425 P.3d 131 (Alaska 2018).

Application of Uniform Child Custody Jurisdiction Act. —

The jurisdictional prerequisites of former AS 25.30.020 (for a similar provision, see now AS 25.30.300 ) apply when a superior court is asked to modify custody. Szmyd v. Szmyd, 641 P.2d 14 (Alaska 1982).

A change in custody should not be ordered lightly. Nichols v. Nichols, 516 P.2d 732 (Alaska 1973); De Hart v. Layman, 536 P.2d 789 (Alaska 1975).

Mother was not entitled to modification of custody, as the trial court recognized that the father had a past history of domestic violence but that there were not current concerns, the children’s needs were being met in Alaska, a psychologist opined that a move to New Jersey would impact one of the children negatively, and the mother’s home would not provide an emotionally stable environment. Andrea C. v. Marcus K., 355 P.3d 521 (Alaska 2015).

Best interests of child is test. —

A court should not alter a previous custody determination without a reasonable basis for concluding that the best interests of the child dictate such a change. King v. King, 477 P.2d 356 (Alaska 1970); Nichols v. Nichols, 516 P.2d 732 (Alaska 1973).

A court modifying a previous custody determination must be guided by what appears to be the best interests of the child. Horton v. Horton, 519 P.2d 1131 (Alaska 1974).

Where the court did not demonstrate consideration of the relevant factors specified in subsection (c) in its order and made no general finding concerning the child’s best interests, the order issed as a result of the hearing was not sufficiently comprehensive to serve as a basis for a general custody change. Platz v. Aramburo, 17 P.3d 65 (Alaska 2001).

Award of sole custody to mother was in the child’s best interests where the mother adhered to the demands of the child’s special dietary needs, was capable of fostering a continued relationship between the father and the child, and where the father was a firm disciplinarian, which on occasion included severe physical correction of his children. Millette v. Millette, 177 P.3d 258 (Alaska 2008), overruled in part, Geldermann v. Geldermann, 428 P.3d 477 (Alaska 2018).

Court properly modified child custody to the father because the mother lived in four residences in five years, she worked for six employers in five years, the mother admitted that even after ending her substance abuse treatment she was drinking more, and the father’s purchase of a business supported his intention to establish roots in the community. Littleton v. Banks, 192 P.3d 154 (Alaska 2008).

Father’s custody modification motion was properly denied because the evidence supported the superior court’s best interests findings that the mother provided the children with a stable, satisfactory environment; the children became stressed during visitation with their father, and the children were very close and should live together. Worthington v. Worthington, — P.3d — (Alaska Aug. 24, 2011), (memorandum opinion).

Denial of father’s motion for custody of his son was proper where the father had not seen the son for several years, had failed to comply with a court order regarding a psychological evaluation, and had not kept up with telephonic visitation. The son was shown to be well-adjusted and successful in his existing custody arrangement. Kurka v. Kurka, — P.3d — (Alaska Nov. 28, 2012), (memorandum opinion).

Conclusion that there was a change in circumstances only provided the basis for a full custody modification hearing, and this conclusion did not control the best interests analysis; at that stage of the analysis, the inability of the parents to communicate was simply one of many statutory factors the trial court was required to consider. Houston v. Wolpert, 332 P.3d 1279 (Alaska 2014).

Superior court conducted a complete analysis of the best interests factors, weighing allegations of domestic violence in the balance along with the other factors, and the superior court’s decision was based not on an adverse domestic violence finding, but on a complete analysis of the best interest factors, and the determination was within the superior court’s discretion. Azzam v. Mortenson, — P.3d — (Alaska Feb. 25, 2015)(memorandum decision).

Required findings show court considered all factors. —

After considering the father’s concerns about the mother’s choice to pursue alternative medical care and her opposition to having the children vaccinated, the court nevertheless found that, overall, the mother demonstrated a higher degree of attention to the children’s physical and medical needs than did the father, based primarily on the parties’ testimony. Co v. Matson, 313 P.3d 521 (Alaska 2013).

Court’s findings were based primarily on testimony and it was not clear error to conclude 1) that the mother was more likely to facilitate and encourage a relationship with the father; 2) that the father’s continued marijuana use would impact the children in light of its negative effect on the children in the past; and 3) that the father did not keep the children on a consistent, stable schedule. Co v. Matson, 313 P.3d 521 (Alaska 2013).

Although the court stated that it considered the children’s ages in determining that primary physical custody should go to the mother, that fact alone did not show that the court applied the tender years doctrine. Age of the children, and the need for stability at an early age are properly considered in determining the children’s best interests. The tender years doctrine was an automatic preference for maternal custody of young children, and there was nothing in the court’s findings to indicate such preference was applied. Co v. Matson, 313 P.3d 521 (Alaska 2013).

Award of primary physical and sole legal custody to the father was proper, given that the superior court weighed the evidence in light of the statutory factors and addressed each factor in depth, finding in part that the mother was less capable to care for the children due to her mental health issues, and that the mother’s alcohol abuse created a substantial risk for the children. Frackman v. Enzor, 327 P.3d 878 (Alaska 2014).

Best interest findings. —

Superior court did not err in modifying custody because its best interests findings were supported by the record; the evidence supported the superior court's findings that the first two factors set forth in subsection (c) favored the mother because she had made extensive efforts to address the child's mental health needs, and the father had not fully recognized or accepted the extent of the child's mental health issues. Lewis G. v. Cassie Y., 426 P.3d 1136 (Alaska 2018).

Because the trial court’s custody order impacted only one child, the trial court was required to make findings with respect to her best interests, but neither the written nor the oral findings provided a sufficient basis for the appeals court to review whether the order was reasonable; it was not apparent from the written findings how the trial court reached its decision, nor was it clear what statutory factors the trial court considered important. Provost v. Dooley, — P.3d — (Alaska Feb. 18, 2015)(memorandum decision).

It was not error for a court considering a mother's custody modification motion to decline to conduct a best interests analysis because the court had to first find a substantial change in circumstances, which was not shown. Andrea C. v. Marcus K., — P.3d — (Alaska Nov. 28, 2018) (memorandum decision).

Superior court did not abuse its discretion in entering an order modifying custody, which awarded sole legal and physical custody of her three children to the father and limited the mother to supervised visitation pending the children's full engagement in therapy, because the mother's interference with the children's therapy amounted to a change in circumstances, and the children's best interests were served by an award of sole legal and physical custody to the father while therapy took hold as it was within the superior court's broad discretion to determine that the children's special need for psychotherapy was their predominant need and that the mother was not currently capable of supporting that need. Georgette S.B. v. Scott B., 433 P.3d 1165 (Alaska 2018).

It was not an abuse of discretion to find a mother showed no substantial change in circumstances when moving for a custody modification because (1) the court did not previously find such a change, and (2) it was not clear error to find no domestic violence occurred. Andrea C. v. Marcus K., — P.3d — (Alaska Nov. 28, 2018) (memorandum decision).

It was not error for a court considering a mother's custody modification motion to decline to conduct a best interests analysis because the court had to first find a substantial change in circumstances, which was not shown. Andrea C. v. Marcus K., — P.3d — (Alaska Nov. 28, 2018) (memorandum decision).

Custody modification was in the child's best interests because the mother had left the child in the care of her boyfriend who had proven himself a poor caregiver and had a violent history; she had allowed the boyfriend to store a gun in her home even after knowing about his prior conviction for a violent crime; and, even when the father was away for work, he provided a more stable environment by leaving the child in the care of responsible adults. Adrianne C. v. Christopher D., — P.3d — (Alaska Jan. 13, 2021) (memorandum decision).

When modifying visitation to limit the mother's visitation to alternating weekends and major holidays, the superior court did not improperly punish her for her failure to comply with prior custody order but rather properly considered how her actions affected her child's best interests, because the appointed custody investigator testified that the child needed therapy and he failed to receive it while in the mother's custody, and the mother would not allow the child to visit the father. Sidney v. Gingerich, — P.3d — (Alaska Mar. 3, 2021).

Superior court did not clearly err in finding that the mother interfered with the relationship between the son and the father because texts between the mother and the son showed that the mother failed to encourage a close and continuing relationship; thus, the superior court did not abuse its discretion maintaining the father's sole legal and primary physical custody over the child. Jessica P. v. Gary P., — P.3d — (Alaska Mar. 17, 2021) (memorandum decision).

Superior court did not clearly err by failing to find that a father was stalking a mother or by finding that the mother's fears of stalking undermined her ability to provide a stable environment because the mother testified about a speculative connection between the father and a car she saw in their neighborhood; the mother's extensive testimony about stalking revealed it to be a source of fear and preoccupation for her. Jessica P. v. Gary P., — P.3d — (Alaska Mar. 17, 2021) (memorandum decision).

Because the record indicated that the child was receiving mental health care while in the father's custody, the superior court did not clearly err in finding that the father was providing the child with access to the care he needed; the superior court did not clearly err when it found that the father had been ensuring that the child had a relationship with a therapist with a continuing psychiatric relationship because he consistently saw a therapist and a psychiatrist. Jessica P. v. Gary P., — P.3d — (Alaska Mar. 17, 2021) (memorandum decision).

Stability factor in modification proceedings. —

Superior court did not err in modifying custody because its best interests findings were supported by the record; the evidence supported the superior court's findings that the fifth factors set forth in subsection (c) favored the mother in light of the child's fragile condition, profound mental health issues, and repeated hospitalizations because the record contained evidence of the child's hospital stays and treatment program. Lewis G. v. Cassie Y., 426 P.3d 1136 (Alaska 2018).

Stability factor set out in subsection (c) requires the court awarding child custody to engage in a comprehensive review of applicable elements of continuity, both retrospectively and prospectively. Moeller-Prokosch v. Prokosch, 99 P.3d 531 (Alaska 2004).

In a parental relocation case, the court properly analyzed the best interests criteria in awarding the mother custody of the child because there was extensive testimony in the record about the child’s close relationship with his half-sisters, and the court found that both parents did an acceptable job maintaining a stable, satisfactory environment for the child. The superior court considered circumstances that the child was likely to encounter in each environment, such as contact with extended family, and showed due consideration for the statutory “stability” factor. Rego v. Rego, 259 P.3d 447 (Alaska 2011).

Father’s custody was properly expanded: the court did consider the stability factor and determined the child’s stability would not be entirely disrupted with a new custody arrangement since the child would continue to attend the same school and was already adjusted to the father’s care on shorter visits. Rebecca L. v. Martin C., — P.3d — (Alaska Mar. 13, 2013), (memorandum opinion).

In this custody modification case, the stability factor favored the mother, as it was not unreasonable for the trial court to have considered that the child had been in the mother’s care for most of her life and this stability would be disrupted if custody were awarded to the father; the trial court did not abuse its discretion in considering the mother’s status as a primary caregiver. Houston v. Wolpert, 332 P.3d 1279 (Alaska 2014).

Religious needs of the child. —

Because neither parent presented any special religious considerations during the hearing, and the mother was granted visitation on Christmas Eve or Christmas Day in alternating years if she were near the father’s residence in Idaho, it was not an abuse of discretion for the court not to give further consideration to the religion factor in its best interest determination in its custody decision. Walters v. Cook, — P.3d — (Alaska Dec. 18, 2013), (memorandum opinion).

It was not an abuse of discretion to award major school holidays and the bulk of the summer vacation to the father, who had moved out of state. The mother, who had primary custody, was given 21 days visitation during the summer and the right to video conference at bedtime every night. Walters v. Cook, — P.3d — (Alaska Dec. 18, 2013), (memorandum opinion).

Parent's ability to care for child. —

Where the father lived in a large two-bedroom trailer with no running water and no central heat, but he heated his home with a wood stove and kept 100 gallons of water on hand for the toilet and other household uses, and the mother lived in a housing project, the superior court did not incorrectly determine that both parties were equally capable of meeting their minor son’s housing needs. Moeller-Prokosch v. Prokosch, 99 P.3d 531 (Alaska 2004).

Willingness of parent to facilitate relationship with other.—

In this custody modification case, the lower court failed to recognize that the father's behavior ultimately undermined the mother-child relationship, and it was an abuse of discretion to decide that best interests factor six was neutral; the father abused the settlement agreement and deprived the mother of contact with the child, and the mother was more willing than the father to facilitate visitation. Weathers v. Weathers, 425 P.3d 131 (Alaska 2018).

Removal of the children from the state should not automatically shift custody without a hearing. Sherry v. Sherry, 622 P.2d 960 (Alaska 1981).

Superior court abused its discretion in a joint custody case where it entered an order stating the father would gain primary physical custody if the mother moved from Alaska to Florida, without considering the detriment to the child if he was separated from his mother. Moeller-Prokosch v. Prokosch, 99 P.3d 531 (Alaska 2004).

Continuity and stability factors do not preordain the result in relocation cases; instead, they command a comprehensive inquiry into each parent’s respective ability to maintain stable and satisfactory relations between themselves and the child. Moeller-Prokosch v. Prokosch, 99 P.3d 531 (Alaska 2004).

Move of custodial parent to another state. —

In making a custody determination where the existing custodial parent chooses to move out of state, a court must consider the best interests of the children by applying the criteria in subsection (c) of this section, and in so doing should consider whether there is a legitimate reason for the move. McQuade v. McQuade, 901 P.2d 421 (Alaska 1995).

In a case in which a child's father alleged that the mother was moving to another state only to make it more difficult for him to spend time with the child, the Supreme Court concluded that the superior court did not clearly err in its findings about the mother's motives or abuse its discretion in the way it conducted its analysis. The superior court recited the evidence supporting its finding about the mother's primary, legitimate motive and, having found that any ulterior motive was at best secondary, went on to carefully weigh the father's allegations in its best interests analysis. Johnson v. Wilson, — P.3d — (Alaska Feb. 20, 2019) (memorandum decision).

In concluding that it was in a child's best interests to remain in Alaska, in her father's custody, the superior court did not properly consider the effect of separating the child from her mother, who wished to relocate with the child to New York. The failure to engage in proper symmetrical analysis constituted error. Saffir v. Wheeler, 436 P.3d 1009 (Alaska 2019).

Superior court did not err in modifying child custody and allowing a mother to relocate with the parties' child to another state because the court found that the mother's motivation was designed to foster a new life with the mother's new boyfriend. The court also found that the mother was not making a concerted effort to exclude the father from the child's life; the court did not fail to give substantial deference to the original custody order, and the court considered testimony about the child's community of family and friends in Alaska. Ott v. Runa, 463 P.3d 180 (Alaska 2020).

Move of non-custodial parent to another state. —

In a modification of custody and visitation action, the court’s remarks recognizing the practical realities of a custody and visitation decision for a school-age child when the parents live in different states, which nearly always require a child to spend the school year with one parent and to spend as much vacation time as possible with the other, the court did not err in applying those considerations to its best interests determination in its child custody decision. Walters v. Cook, — P.3d — (Alaska Dec. 18, 2013), (memorandum opinion).

Move of custodial parent to another state.

Because the supreme court could determine whether the superior court abused its discretion in weighing the best interests factors, the case was remanded for renewed consideration of the challenged factors along with the symmetrical analysis; the superior court's analysis of the child's needs and the parents' capability and desire to meet them did not support its conclusion that it was in the child's best interests to remain in Alaska. Carpenter v. Blue, — P.3d — (Alaska Mar. 17, 2021) (memorandum decision).

It was improper to find that it was in a daughter's best interests to remain in Alaska with her father during the school year because the superior court failed to conduct the required symmetrical analysis; because the legitimacy of the mother's move was undisputed, the superior court was required to evaluate and symmetrically analyze the impact on the child of the move, but it failed to consider how stability in Alaska would be affected by the child's prolonged separation from her mother. Carpenter v. Blue, — P.3d — (Alaska Mar. 17, 2021) (memorandum decision).

Relocation of one parent affecting stability of child's environment. —

Because the child would no longer be able to spend equal time with each parent in situations in which two parents share custody and one subsequently decides to relocate to another state, a court considering the child’s need for stability in this context must examine not only the desirability of maintaining geographical continuity, but also the importance of maximizing relational stability. Moeller-Prokosch v. Prokosch, 99 P.3d 531 (Alaska 2004).

Trial court’s finding that the father was less likely than the mother to facilitate a close and continuing relationship with the other parent rested on the trial court’s determination that, inter alia, the father’s claim that it was important for the mother to have contact with the child was not credible and the mother’s testimony as to the importance of communicating with the child about the other parent was credible. James R. v. Kylie R., 320 P.3d 273 (Alaska 2014).

Anticipated relocation by parent constitutes changed circumstance. —

Where parties had joint legal and physical custody of their daughter, superior court did not abuse its discretion by ruling that it was in the daughter’s best interests under subsection (c) to stay with the father in Alaska to maintain continuity and stability should the mother move to Oregon; mother’s move was driven in part by the illegitimate motive of limiting the father’s ability to be involved in their daughter’s life. Eniero v. Brekke, 192 P.3d 147 (Alaska 2008).

Where a parent filed for a custody determination on the basis of an anticipated move out of state, the anticipated move constituted a change in circumstances that required determination of custody following the move. Nelson v. Nelson, 263 P.3d 49 (Alaska 2011).

Modification of child custody or visitation must generally rest upon some substantial change in circumstances. Cooper v. State, 638 P.2d 174 (Alaska 1981).

Modification not barred. —

Superior court correctly ruled that a mother’s motion to modify custody was not barred by res judicata or collateral estoppel because the parties repeatedly and expressly declined to litigate issues of domestic violence or custody at the long-term domestic violence hearing, and the mother was not attempting to relitigate issues that had already been decided; neither domestic violence nor custody was actually litigated and necessarily decided in the protective order proceeding. Graham R. v. Jane S., 334 P.3d 688 (Alaska 2014).

The “change of circumstance” doctrine is not an ironclad rule. King v. King, 477 P.2d 356 (Alaska 1970).

This section does not refer to a requirement of “change of circumstance” in order to modify a decree. Nichols v. Nichols, 516 P.2d 732 (Alaska 1973).

It is perhaps possible to conceive of a case in which, despite the fact that there was apparently no change of circumstances, nevertheless the welfare of the child might require that the previous order of custody be changed, but without some change in circumstance there is no logical basis for a court to alter a determination that has once seriously and finally been made. King v. King, 477 P.2d 356 (Alaska 1970); Nichols v. Nichols, 516 P.2d 732 (Alaska 1973).

The concept of “substantial change” of circumstances is not a limitation on the discretion of the trial court to determine custody according to the best interest of the child. Rather, it may be considered simply a rule of judicial economy designed to discourage discontented parents from continually renewing custody proceedings. King v. King, 477 P.2d 356 (Alaska 1970); Nichols v. Nichols, 516 P.2d 732 (Alaska 1973).

The “substantial change” of circumstances is not an initial obstacle to be overcome by either party in order to have the court redetermine custody. It is simply one of the factors to be weighed in the balance by the court when a motion for modification of a divorce decree in respect to custody is made. King v. King, 477 P.2d 356 (Alaska 1970); Nichols v. Nichols, 516 P.2d 732 (Alaska 1973).

Where a requested change in custody was not in the child’s best interests it was unnecessary to determine whether there was a substantial change in circumstances; the dispositive issue was the child’s best interests, not the alleged change in circumstances. Matthew P. v. Gail S., 354 P.3d 1044 (Alaska 2015).

Substantial change issue waived. —

Mother waived her argument that no substantial change in circumstances occurred; she mentioned the issue only in her statement of points and did not further develop it, and she never raised the issue at either hearing. Provost v. Dooley, — P.3d — (Alaska Feb. 18, 2015)(memorandum decision).

Preferences of older children. —

The superior court gave proper weight to the teenagers’ desire to live with their mother, but their preferences were not mature and well-reasoned, and were outweighed by their need for the “substantial guidance” that the court found the father better equipped to provide. Jenkins v. Handel, 10 P.3d 586 (Alaska 2000).

It was proper to give significant weight to a 14-year-old son’s preference to move to Virginia with his father. The mother did not provide any reason to question his maturity, nor did she point to evidence suggesting the child’s preference was a result of pressure. Sheffield v. Sheffield, 265 P.3d 332 (Alaska 2011).

No substantial change in circumstances justifying a modification of custody was shown because (1) the parties did not agree to modification, (2) the children stated no such preference, (3) passage of time did not suffice, (4) the parties' inability to communicate was not a change, and (5) a change in a mother's child-care ability was not substantial. Berry v. Berry, — P.3d — (Alaska Dec. 11, 2019) (memorandum decision).

Superior court did not abuse its discretion by declining to consider the child's preference when modifying the mother's visitation because the custody investigator reported that the 15-year-old child lacked capacity to form a preference, and the mother did not rebut this evidence. Sidney v. Gingerich, — P.3d — (Alaska Mar. 3, 2021) (memorandum decision).

Change in law as material change. —

Certain changes in the law can constitute material changes of circumstances permitting the modification of child support orders including the adoption of Alaska Civ. P. R. 90.3; the rule change that makes Alaska Civ. P. R. 90.3(a), rather than Alaska R. Civ. P. 90.3(b), the default method for calculating divided custody awards is such a material change. Kelly v. Joseph, 46 P.3d 1014 (Alaska 2002).

Effect of hostility between parents. —

Ordinarily, hostility and dispute between the parents, in and of itself, will not be considered a substantial change of circumstances unless the adverse impact on the child is extreme. The effect of hostility between the parents, however, may combine with other significant changes in circumstance to amount, in the aggregate, to a substantial change sufficient to warrant change of custody. Long v. Long, 816 P.2d 145 (Alaska 1991).

Superior court properly modified the child custody award under AS 25.20.110(a) where sufficient evidence showed that the father had attempted to manipulate the mother and that, as a result, their interpersonal relationship hurt the child; also, contrary to the father’s assertion, the superior court judge never referred to the father’s potential deployment with the U.S. Army in his findings on the stability and continuity of the child’s custody. Chesser v. Chesser-Witmer, 178 P.3d 1154 (Alaska 2008).

Trial court did not err in modifying a custody order and awarding the mother sole legal and primary physical custody because the father did not meet the children’s emotional, mental, and social needs; his conduct towards and negative comments about the mother and her live-in boyfriend had a substantial negative impact on the children. Derrick S. v. Dawn S., — P.3d — (Alaska July 25, 2012), (memorandum opinion).

Parental cooperation. —

Trial court did not abuse its discretion in modifying custody and awarding sole legal and primary physical custody to the mother, as the father failed to convince the court that the superior court clearly erred in finding that the parties did not communicate well enough to share legal custody. Azzam v. Mortenson, — P.3d — (Alaska Feb. 25, 2015)(memorandum decision).

Error not to consider evidence of both parents' faults. —

There was a material change of circumstances due to the mother’s arrests and conduct with her boyfriends that involved domestic violence and a gun. A parent’s history of relationships marked by violence speaks to the statutory factor of “the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.” At the same time it was an abuse of discretion for the court not to consider that the father had been convicted of assaulting the mother. Heather W. v. Rudy R., 274 P.3d 478 (Alaska 2012).

Domestic violence factor. —

In a child custody dispute, the superior court did not err by failing to consider evidence of domestic violence by the husband against the wife to the extent the court faulted the wife for the current relationship between the parties; the superior court did not weigh this factor against either party, and there was no indication the factor affected the custody decision. Moeller-Prokosch v. Prokosch, 99 P.3d 531 (Alaska 2004).

In denying the mother’s motion to modify custody, a court did not err in determining that the presumption in subsection (g) did not apply in the case because each party had committed two acts of domestic violence and the violence was “situational;” domestic violence was not likely to recur by either party and it was not a factor that precluded them from sharing custody. Mallory D. v. Malcolm D., 290 P.3d 1194 (Alaska 2012).

Superior court found there was no domestic violence to trigger the rebuttable presumption in the statute because the mother’s allegations against the father occurred before the superior court’s custody order in 2005, the criminal charges were dismissed, and there was no evidence that he continued to use corporal punishment against the children. Frackman v. Enzor, 327 P.3d 878 (Alaska 2014).

Subsection (g) presumption against giving unsupervised visitation to a parent with a history of domestic violence did not apply where there was no credible evidence in the record establishing that the mother committed acts of domestic violence against the children. Wade R. v. Melinda R., — P.3d — (Alaska Oct. 8, 2014) (memorandum decision).

Parties’ earlier custody order was the product of a stipulated agreement, and the superior court was not called upon at that time to make any findings about domestic violence, such that it was proper for the superior court to consider evidence of domestic violence, regardless of when it was committed, when deciding the parties’ motions to modify custody. Azzam v. Mortenson, — P.3d — (Alaska Feb. 25, 2015)(memorandum decision).

Mother argued that the superior court erred in declining to apply the domestic violence presumption, and she arguably had an opportunity to raise the issue of domestic violence at the subsequent hearing; on remand, the trial court should consider all proffered evidence of domestic violence. Provost v. Dooley, — P.3d — (Alaska Feb. 18, 2015)(memorandum decision).

Superior court did not err in finding that the mother did not have a history of perpetrating domestic violence where the marks, scratches, and bruises as a result of an assault with a belt were not a serious physical injury, the court declined to expand serious physical injury to include emotional harm, and the assault did not constitute two or more distinct incidents of domestic violence. John E. v. Andrea E., 445 P.3d 649 (Alaska 2019).

References to a pattern of domestic violence; to repetitive, perpetual domestic violence; to perpetuating domestic violence; and to doing it again and again to maintain control indicate that the legislature viewed the phrase "more than one incident of domestic violence" as referring to habitual or recurring violence. An episode of excessive corporal punishment lasting 30 minutes does not evince a pattern of domestic violence. John E. v. Andrea E., 445 P.3d 649 (Alaska 2019).

Weight accorded domestic violence factor. —

It was error to grant a father's motion to modify custody of a child because (1) the court did not account for the father's sexual abuse of the mother in analyzing two best interests factors, affecting the weight given the factors, as he admitted committing more than one act of sexual abuse against the mother and therefore had a history of perpetrating domestic violence against her, raising a statutory presumption against awarding him custody, and (2) the court's best interests findings did not weigh his sexual abuse. Angelica C. v. Jonathan C., 459 P.3d 1148 (Alaska 2020).

Open and loving relationship. —

Superior court did not err in finding that the father was more willing and able to allow his son an open and loving relationship with the child’s mother than vice-versa. The father allowed his son to be with his mother on holidays that were technically his visitation days, but the mother never reciprocated; further, the father testified that the mother would not allow the son to take to her house items from the father. Moeller-Prokosch v. Prokosch, 99 P.3d 531 (Alaska 2004).

Continuing relationship. —

In this custody modification case, the trial court did not abuse its discretion in weighing the continuing relationship factor; the trial court clearly identified which factors it found to be most important, and could have concluded that a permanent visitation schedule would be enough to ensure mother did not repeat her previous misconduct. Houston v. Wolpert, 332 P.3d 1279 (Alaska 2014).

Arrangement jeopardizing father's relationship with children. —

Finding that the existing custody arrangement, in which the mother had custody, placed the relationship of the father and the children at risk, supported change of custody, granting custody of the children to the father. Pinneo v. Pinneo, 835 P.2d 1233 (Alaska 1992).

Interim custody awards. —

Modification of a final custody award requires evidence of changed circumstances and evidence that the modification is in the best interests of the child. By contrast, the supreme court has long held that the trial court’s interim custody decision requires only an analysis of the factors in subsection (c) and consideration of the best interests of the child. There is no legal authority to support a party’s contention that the trial court must find changed circumstances to justify altering its interim custody award. Velasquez v. Velasquez, 38 P.3d 1143 (Alaska 2002).

Substantial change found. —

There was satisfaction of the “substantial change” doctrine where each party had remarried and the home environment for the child that would be afforded by either party had changed. King v. King, 477 P.2d 356 (Alaska 1970).

The custodial parent’s decision to leave the state with the children constitutes a substantial change in circumstances. House v. House, 779 P.2d 1204 (Alaska 1989).

Modification justified. —

Court properly modified child custody to a father where the mother interfered in the father’s relationship with the child, which demonstrated an unwillingness to allow an open and loving relationship, and the mother’s assisted living facility raised a concern about her ability to meet the child’s physical, emotional, mental and social needs. Chesser-Witmer v. Chesser, 117 P.3d 711 (Alaska 2005).

Superior court properly modified custody of the parties' children from the mother in New York to the father in Alaska because the court did not deprive the mother of due process, the superior court made clear findings based on the statutory best interests factors and not to punish the mother, and the superior court's findings of fact: 1) that the mother was not credible, 2) misrepresented information about one of the children to medical providers, and 3) falsely characterized the mother's move to the area to a New York court, were not clearly erroneous. Burns v. Burns, 466 P.3d 352 (Alaska 2020).

Burden of proof. —

The burden of proving a substantial change of circumstance is on the moving parent. House v. House, 779 P.2d 1204 (Alaska 1989).

When hearing not required. —

While a trial court must consider all motions for a change in custody, it is not required to grant a hearing on the motion if it is plain that the facts alleged in the moving papers, even if established, would not warrant a change. Deivert v. Oseira, 628 P.2d 575 (Alaska 1981).

This section precludes a superior court from denying a motion for a change in custody with prejudice. Cooper v. State, 638 P.2d 174 (Alaska 1981).

Future requests for changes. —

A superior court may deny any particular request for modification of child custody or visitation so long as it does not abuse its discretion in doing so; but it cannot preclude future requests for a change in custody. Cooper v. State, 638 P.2d 174 (Alaska 1981).

Weight must be given to findings made at the original hearing. De Hart v. Layman, 536 P.2d 789 (Alaska 1975).

A court must give great weight to a finding of unfitness by a trial judge who has heard exhaustive testimony and examined exhibits, including medical and psychiatric reports. Nichols v. Nichols, 516 P.2d 732 (Alaska 1973).

Consideration of original decree in modification cases. —

Where the court, in a hearing on a petition for change of custody, made only passing reference to the prior proceedings, the hearing became a reweighing of the evidence at the original custody hearing without imposing the heavy burden of persuasion required of the party seeking the modification, and was an abuse of discretion. Gratrix v. Gratrix, 652 P.2d 76 (Alaska 1982).

Motion not supported by evidence of changed circumstances. —

Where mother belatedly filed a motion to reconsider, for the first time alleging domestic violence against the father, the trial court properly refused to hear the motion because the mother failed to present evidence of a changed circumstance that would affect the children’s best interests. Ginn-Williams v. Williams, 143 P.3d 949 (Alaska 2006).

Father's motion to modify child custody based on a substantial change in circumstances was properly denied because the changes identified were the outgrowth of the superior court's decision to allow the mother to move to Germany with the children, and it had anticipated that there might be setbacks as the children adapted to German schooling; the father did not address the concern that he was able to exert undue influence on the children; there was no abuse of discretion in denying a change of custody when a parent did not address concerns about the children potentially having been coached and influenced, making it impossible to determine their true preferences; and the eldest child's age alone did not constitute a change in circumstances. Bennett v. Bennett, — P.3d — (Alaska Sept. 25, 2019) (memorandum decision).

Review. —

The Alaska supreme court will only reverse a trial court’s decision to deny a change in custody if it abuses the substantial discretion it possesses in such matters, or if it makes clearly erroneous findings. Deivert v. Oseira, 628 P.2d 575 (Alaska 1981).

Establishment of abuse of discretion. —

Abuse of discretion by a trial court in denying a change in custody can be established by showing that the court considered improper factors in making its determination, that it failed to consider statutorily-mandated factors, or that too much weight was assigned to some factors. Deivert v. Oseira, 628 P.2d 575 (Alaska 1981); Starkweather v. Curritt, 636 P.2d 1181 (Alaska 1981).

Discretion not abused. —

Superior court did not abuse its discretion in determining that remaining in the father’s custody and moving with him to California would be in the children’s best interests. House v. House, 779 P.2d 1204 (Alaska 1989).

There was no basis for concluding that the trial court committed clear error when it found that the mother was the parent more capable of fostering a loving relationship than the non-custodial parent. Pearson v. Pearson, 5 P.3d 239 (Alaska 2000).

Trial court did not err in modifying child custody agreement because it adequately addressed the children’s best interests under the required factors set out in subsection (c). Kelly v. Joseph, 46 P.3d 1014 (Alaska 2002).

Court properly found that it was in the children’s best interests for the mother to have sole legal custody because the court emphasized the mother’s track record as a primary caregiver, and it found that while the mother had promoted the children’s relationship with the father, the father undermined their relationship with the mother. William P. v. Taunya P., 258 P.3d 812 (Alaska 2011).

Supervised visitation held proper. —

Superior court did not err in limiting the mother to supervised visitation pending the children's full engagement in therapy because the mother had refused to accept the realities of the scope of assistance required for the children, rendering her incapable of supporting the children's special need for psychotherapy; the father was attempting to establish another therapeutic relationship, but the court feared that the mother would sabotage that relationship as well; and the court determined that the only workable option was to limit the mother's negative influence on the children, at least temporarily, so that the therapy could take hold. Georgette S.B. v. Scott B., 433 P.3d 1165 (Alaska 2018).

Award supported by analysis upheld. —

Mother failed to establish clear error or an abuse of discretion on the part of the superior court that modified a previously-entered child custody award, and to award the custody of all four children to their father, where court supported its award with a brief analysis of each of the best interests factors set forth in subsection (c)(1)-(9) of this section. Melendrez v. Melendrez, 143 P.3d 957 (Alaska 2006).

Visitation schedule held reasonable. —

In this custody modification case, the court-ordered visitation schedule consisted of Wednesday evening and weekend visits, which was an increase in the father’s visitation; it reasonably addressed the trial court’s concern with stability, and was not an abuse of discretion. Houston v. Wolpert, 332 P.3d 1279 (Alaska 2014).

Conformity with Alaska law. —

In a custody modification proceeding, the superior court was well within its discretion when it modified the custody order to make it conform to Alaska law. Heber v. Heber, 330 P.3d 926 (Alaska 2014).

B.Decrees of Other States

Effect of awarding custody in another state. —

A decree awarding the custody of a child to one of the parties, rendered when the child is in another state, does not preclude the courts of the latter state from determining the question of custody of the child, although the court rendering such decree retains jurisdiction for the purpose of making further orders. Weber v. Weber, 10 Alaska 214 (D. Alaska 1942).

A foreign custody decree can be modified in the absence of a showing of changed circumstances. Layman v. De Hart, 560 P.2d 1206 (Alaska 1977).

Relationship of the full faith and credit clause to child custody cases. —

The full faith and credit clause should be applied in custody cases as a deterrent to child stealing or forum shopping by a litigant. However, where the children had lived in Alaska for a year before the mother obtained a Montana custody order transferring custody to her, the Alaska court did not err in failing to accord full faith and credit to the Montana modification order. Wilsonoff v. Wilsonoff, 514 P.2d 1264 (Alaska 1973).

A child’s welfare has such a great claim upon a state that this responsibility was not to be foreclosed by a prior adjudication made by another state. Wilsonoff v. Wilsonoff, 514 P.2d 1264 (Alaska 1973); Layman v. De Hart, 560 P.2d 1206 (Alaska 1977).

Although a sister state’s decree should not be ignored in custody matters, strict application of the full faith and credit clause would result in a default of the court’s responsibility to ensure the welfare of minor children domiciled in Alaska. Layman v. De Hart, 560 P.2d 1206 (Alaska 1977).

Foreign decrees should not be wholly ignored in custody disputes. De Hart v. Layman, 536 P.2d 789 (Alaska 1975).

And are to be considered significant factor. —

Alaska law requires that the custody decree of a sister state be considered a significant factor by the courts of Alaska in determining whether or not the foreign custody decree should be modified. Layman v. De Hart, 560 P.2d 1206 (Alaska 1977).

Application of “clean hands” doctrine. —

The “clean hands” doctrine is generally considered a device for resolving problems of custody jurisdiction among the states and is most commonly invoked when a court is asked to either enforce or modify a custody decree of a sister state. King v. King, 477 P.2d 356 (Alaska 1970).

The “clean hands” doctrine serves no purpose in a setting where the court is asked to modify its own custody award as specifically allowed by the statute. King v. King, 477 P.2d 356 (Alaska 1970).

Courts will recognize and enforce custody decrees of a sister state without reexamination of their merits, regardless of change of conditions, when there is misconduct or malfeasance on the part of the parent seeking such reexamination, by invoking the doctrine of “clean hands.” This misconduct generally consists of defiantly leaving a sister state, usually the marital domicile, with the minor to avoid its jurisdiction and for the purpose of seeking redetermination of the issue in a more favorable forum. King v. King, 477 P.2d 356 (Alaska 1970).

Collateral references. —

Consent of natural parents as essential to adoption where parents are divorced, 47 ALR2d 824.

Court’s power as to custody and visitation of children in marriage annulment proceedings, 63 ALR2d 1008.

Mental health of contesting parent as factor in award of child custody, 74 ALR2d 1073.

Power of court which denied divorce, legal separation or annulment, to award custody or make provisions for support of child, 7 ALR3d 1096.

Right, in child custody proceedings, to cross-examine investigating officer whose report is used by court in its decision, 59 ALR3d 1337.

Effect in subsequent proceedings, of paternity findings or implications in divorce or annulment decree or in support or custody made incident thereto, 78 ALR3d 846.

Grandparents’ visitation rights, 90 ALR3d 222.

Admissibility of social worker’s expert testimony on custody issue, 1 ALR4th 837.

Visitation rights of persons other than natural parents or grandparents, 1 ALR4th 1270.

Parent’s physical disability or handicap as factor in custody award or proceedings, 3 ALR4th 1044.

Initial award or denial of child custody to homosexual or lesbian parent, 6 ALR4th 1297.

Race as factor in custody award or proceedings, 10 ALR4th 796.

Desire of child as to geographical location of residence or domicile as factor in awarding custody or terminating parental rights, 10 ALR4th 827.

Right of incarcerated mother to retain custody of infant in penal institution, 14 ALR4th 748.

Propriety of awarding joint custody of children, 17 ALR4th 1013.

Propriety of awarding custody of child to parent residing or intending to reside in foreign country, 20 ALR4th 677.

Transsexuality of parent as factor in award of custody of children, 59 ALR4th 1170.

Mother’s status as “working mother” as factor in awarding child custody, 62 ALR4th 259.

Withholding visitation rights for failure to make alimony or support payments, 65 ALR4th 1155.

Separating children by custody awards to different parents — post-1975 cases, 67 ALR4th 354.

Authority of court, upon entering default judgment, to make order for child custody or support which were not specifically requested in pleadings of prevailing party, 5 ALR5th 863.

Continuity of residence as factor in contest between parent and nonparent for custody of child who has been residing with nonparent—modern status, 15 ALR5th 692.

Parent’s use of drugs as factor in award of custody of children, visitation rights, or termination of parental rights, 20 ALR5th 534.

Rights and remedies of parents inter se with respect to the names of their children, 40 ALR5th 697.

Religion as factor in child custody cases, 124 ALR5th 203.

I.General Consideration

Applicability. —

Where the former wife sought enforcement of a property agreement, the former husband was not statutorily entitled to modification where the property rights of the parties had been adjudicated and incorporated into a final judgment. In the absence of a motion seeking relief from judgment, the superior court’s task was to interpret and enforce the agreement by reference to principles of contract law. McCarter v. McCarter, 303 P.3d 509 (Alaska 2013).

Necessary jurisdiction over parties and subject matter. —

This section and AS 09.55.220 (now AS 25.24.170 ) are predicated upon the court’s jurisdiction of the parties and the subject matter. Weber v. Weber, 10 Alaska 214 (D. Alaska 1942).

Where the plaintiff was a resident of Connecticut and the defendant a resident of Alaska, constructive service of summons being made on the defendant in Alaska, the court of the forum had jurisdiction of the marital status but did not have jurisdiction of the person of the defendant which is essential for the entry of a money judgment for alimony. Thornhill v. Houston, 13 Alaska 150 (D. Alaska 1951).

In a divorce proceeding, the trial court’s failure to grant the husband’s proposed amendment based on his allegation that the court lacked subject matter jurisdiction because the marriage was void was harmless error because the court properly exercised jurisdiction to divide the parties’ property under subsection (a), which allows the division of property acquired during a putative marriage which is found to be void. Rodriguez v. Rodriguez, 908 P.2d 1007 (Alaska 1995).

Prohibiting contact with former spouse. —

The superior court has jurisdiction, where appropriate, to enter a “no-contact” order prohibiting a party from making contact with his former spouse in the context of a final decree of divorce. Siggelkow v. State, 731 P.2d 57 (Alaska 1987).

Counseling expenses. —

There was no obvious mistake in the superior court’s consideration of the wife’s counseling expenses because the superior court did not award the wife counseling expenses as tort damages but rather as part of an equitable property division; the court could consider the conduct of the parties when making such a division, and a victim of domestic violence may recover counseling expenses from the responsible party. Shear v. Shear, — P.3d — (Alaska Dec. 3, 2014).

Parties' assets offset by debt. —

Where parties had acquired substantial marital assets but were also deeply in debt, case was remanded with instructions that the trial court make specific findings regarding the propriety of either a rehabilitative or reorientation alimony award and the proper amount thereof. Dixon v. Dixon, 747 P.2d 1169 (Alaska 1987).

Findings related to spousal support. —

Because the trial court did not make findings concerning a former wife’s needs or indicate how its award of spousal support would meet those needs, that issue was remanded to the trial court for reconsideration and additional findings. Barnett v. Barnett, 238 P.3d 594 (Alaska 2010).

Findings held insufficient for child custody determination. —

Trial court had sufficient grounds to determine that a husband and a wife in divorce proceedings were able to communicate effectively when necessary; however, the trial court did not make sufficient findings or conclusions of law to support award of joint legal custody of parties’ children. Dragseth v. Dragseth, 210 P.3d 1206 (Alaska 2009).

Grant of Rule 60(b)(4) motion was improper. —

Court erred in granting husband’s Rule 60(b)(4) motion where he based his decision on the sufficiency of the evidence and not the sufficiency of the procedures provided before or during trial. The conclusion did not implicate the process the husband received, but implicated alleged decisional error for which the remedy is a direct appeal, not a Rule 60(b)(4) motion. Blaufuss v. Ball, 305 P.3d 281 (Alaska 2013).

Dissipation of assets.—

Property division failed to follow the proper procedure for addressing the post-separation dissipation of marital assets, first valuing the dissipated asset at the time of separation and then crediting that amount to the responsible spouse in the property division; a figure for the amount of lost marital equity used in the property division was clearly erroneous. Rohde v. Rohde, 507 P.3d 986 (Alaska 2022).

Student loans.—

For purposes of AS 25.24.160 , the husband failed to show that the superior court's factual findings were clearly erroneous or that he rebutted the presumption that the wife's student loans were marital debt, as the superior court credited the wife's testimony, and the evidence would not be reweighed on appeal. Grove v. Grove, 400 P.3d 109 (Alaska 2017).

Loan from family member. —

Loan from husband’s mother was a marital debt where the wife used this money to pay off her student loans; because the loan was acquired during the parties’ marriage, it was presumptively martial debt, and it was the husband’s burden to prove that it was separate debt. The debt remained presumptively marital because the transaction occurred before the parties were separated. Richter v. Richter, 330 P.3d 934 (Alaska 2014).

Applied in

Murphy v. Murphy, 812 P.2d 960 (Alaska 1991); Chotiner v. Chotiner, 829 P.2d 829 (Alaska 1992); Cox v. Cox, 882 P.2d 909 (Alaska 1994); Foster v. Foster, 883 P.2d 397 (Alaska 1994); Davila v. Davila, 908 P.2d 1027 (Alaska 1995); Johns v. Johns, 945 P.2d 1222 (Alaska 1997); State Farm Auto. Ins. Co. v. Raymer, 977 P.2d 706 (Alaska 1999).

Quoted in

Balchen v. Balchen, 566 P.2d 1324 (Alaska 1977); Allen v. Allen, 645 P.2d 774 (Alaska 1982); Brooks v. Brooks, 677 P.2d 1230 (Alaska 1984); Burrell v. Burrell, 696 P.2d 157 (Alaska 1984); Lawrence v. Lawrence, 718 P.2d 142 (Alaska 1986); Ogden v. Ogden, 39 P.3d 513 (Alaska 2001); Berry v. Berry, 277 P.3d 771 (Alaska 2012).

Stated in

Glover v. Ranney, 314 P.3d 535 (Alaska 2013); Ruppe v. Ruppe, 358 P.3d 1284 (Alaska 2015); Maxwell v. Sosnowski, 420 P.3d 1227 (Alaska 2018); Schikora v. Schikora, — P.3d — (Alaska Sept. 12, 2018) (memorandum decision).

Cited in

Otton v. Zaborac, 525 P.2d 537 (Alaska 1974); Gutterman v. First Nat'l Bank, 597 P.2d 969 (Alaska 1979); Batey v. Batey, 933 P.2d 551 (Alaska 1997); Dunn v. Dunn, 952 P.2d 268 (Alaska 1998); Monette v. Hoff, 958 P.2d 434 (Alaska 1998); Martin v. Martin, 52 P.3d 724 (Alaska 2002); Silvan v. Alcina, 105 P.3d 117 (Alaska 2005); Lawson v. Lawson, 108 P.3d 883 (Alaska 2005); Carr v. Carr, 152 P.3d 450 (Alaska 2007); Haines v. Cox, 182 P.3d 1140 (Alaska 2008); Ethelbah v. Walker, 225 P.3d 1082 (Alaska 2009); Morris v. Horn, 219 P.3d 198 (Alaska 2009); Pestrikoff v. Hoff, 278 P.3d 281 (Alaska 2012); Fernandez v. Fernandez, 312 P.3d 1098 (Alaska 2013); Dundas v. Dundas, 362 P.3d 468 (Alaska 2015); Thomson v. Thomson, 394 P.3d 604 (Alaska 2017).

II.Child Support

The trial court is given broad discretion in fashioning suitable visitation rights and support obligations. Curgus v. Curgus, 514 P.2d 647 (Alaska 1973).

“Just and proper” contribution. —

Civil Rule 90.3, regarding child support awards, does not modify or amend this section, but the rule interprets the code section and establishes guidelines to enable courts to detemine what is a “just and proper” contribution. Coghill v. Coghill, 836 P.2d 921 (Alaska 1992).

Determination of amount. —

Child support is to be equitably assessed based on both parents’ ability to meet the reasonable needs of the children. Richmond v. Richmond, 779 P.2d 1211 (Alaska 1989), overruled in part, Hansen v. Hansen, 119 P.3d 1005 (Alaska 2005).

Adjustment for inflation. —

Approving an adjustment of support obligations to keep pace with inflation enables the court to put the interests of the child first. H.P.A. v. S.C.A., 704 P.2d 205 (Alaska 1985).

Linking the adjustment of support obligations to an accepted and reliable indicator such as the Cost of Living Index simply maintains the buying power of support payments at the same level as the original award; the father’s argument, that the built-in adjustment impermissibly shifts the burden of proving changed circumstances to the non-custodial parent was without merit; a built-in adjustment enables the court to put the interests of the child first. H.P.A. v. S.C.A., 704 P.2d 205 (Alaska 1985).

Post-majority education. —

The court was not convinced that the legislature intended to provide for post-majority educational support in either an original decree or in a modification of the original decree, and to the extent Hinchey is inconsistent with this conclusion it was overruled. Dowling v. Dowling, 679 P.2d 480 (Alaska 1984).

The rule of Dowling v. Dowling, 679 P.2d 480 (Alaska 1984), is clear and cannot be ignored: When a husband and wife with children divorce the court cannot require either parent to pay for post-majority college education. H.P.A. v. S.C.A., 704 P.2d 205 (Alaska 1985).

Handicapped adult child. —

The divorce court has the authority to award continuing support payments for a handicapped adult child. Streb v. Streb, 774 P.2d 798 (Alaska 1989).

The award for a handicapped adult should be reasonably calculated to reimburse the moving party for a fair percentage of funds actually spent on reasonable child care expenditures. Streb v. Streb, 774 P.2d 798 (Alaska 1989).

Stepchild. —

One exception to the rule that a stepparent has no duty to support a stepchild occurs where the stepparent has made an express written or oral agreement to support the stepchild, where such agreement is enforceable under that law. Dewey v. Dewey, 886 P.2d 623 (Alaska 1994).

Non-biological offspring. —

Where appellant claimed that the youngest child born during his marriage was not his biological son, but had voluntarily filed documents with the superior court listing the son as his child after paternity was disestablished, the court did not err by including the son in its calculation of his monthly child support obligation. Ray v. Ray, 115 P.3d 573 (Alaska 2005).

Maintenance of insurance. —

Because a divorce can raise special concerns about the financial support of children, the Alaska supreme court approved the use of insurance as security for a support obligation where appropriate; however, the provision in a trial court’s order requiring maintenance of an insurance policy until a child graduated from college or reached 25 years apparently was designed to insure payments for post-majority college costs and was modified to require maintenance of insurance until the child reached 18. H.P.A. v. S.C.A., 704 P.2d 205 (Alaska 1985).

Payments voluntarily made to the children are not to be credited against child support obligations. The rationale is that such voluntary payments to the children quite often are intended for particular purposes whereas the manner in which child support payments are used to meet the children’s basic needs is left to the discretion of the parent or guardian with custody. Young v. Williams, 583 P.2d 201 (Alaska 1978).

When a defendant husband is required by a divorce decree to pay to the plaintiff money for the support of the children, and the unpaid and accrued installments become judgments in favor of the plaintiff he cannot, as a matter of law, claim credit on account of payments voluntarily made directly to the children, though special considerations of an equitable nature may justify a court in crediting such payments on his indebtedness to the plaintiff when that can be done without injustice to the plaintiff-wife. Young v. Williams, 583 P.2d 201 (Alaska 1978).

Agreement not enforceable. —

Husband’s agreement to pay child care expenses in addition to child support was conditioned on his not being assessed spousal support; because spousal support was awarded to the wife, the agreement regarding child care expenses was not enforceable. Novak v. Novak, — P.3d — (Alaska Aug. 26, 2015) (memorandum decision).

Noncustodial parent's voluntary reduction of income. —

A noncustodial parent who voluntarily reduces his or her income should not automatically receive a corresponding reduction in his or her child support obligation. Pattee v. Pattee, 744 P.2d 658 (Alaska 1987), overruled, Nass v. Seaton, 904 P.2d 412 (Alaska 1995).

When a noncustodial parent voluntarily reduces his income, the judge should consider the nature of the changes and the reasons for the changes, and then determine the appropriate child support award. Pattee v. Pattee, 744 P.2d 658 (Alaska 1987), overruled, Nass v. Seaton, 904 P.2d 412 (Alaska 1995).

Credit. —

Husband was not entitled to credit against interim support payments for mortgage payments on the marital home, after the wife no longer lived there, because (1) the payments were no longer part of the wife's expenses, and, (2) once the husband occupied the home, granting him such a credit would inequitably allow him to live in the home for free. Hockema v. Hockema, 403 P.3d 1080 (Alaska 2017).

Credit for wages paid to son. —

The superior court abused its discretion in denying credit against defendant’s support obligation for $800.00 in payment to his son as wages for services rendered in constructing a fence. Young v. Williams, 583 P.2d 201 (Alaska 1978).

Award excessive. —

Where the wife’s investment income was not as great as the husband’s income, it did not justify placing the entire burden for out-of-pocket child support expenses on him; he might have to carry a greater burden, but not the total burden. Richmond v. Richmond, 779 P.2d 1211 (Alaska 1989), overruled in part, Hansen v. Hansen, 119 P.3d 1005 (Alaska 2005).

Expenses beyond reasonable need were son’s summer hockey camp, daughter’s gymnastics class that daughter was not enrolled in, and yearly expense for three-year-old daughter’s psychotherapy sessions when the treatment would have only taken about six months. Money v. Money, 852 P.2d 1158 (Alaska 1993).

Child support award held inadequate. —

Child support award to wife for two children was inadequate where the wife had no income, was required to pay $100 per month in child support to the husband, and would have to invade her equities to maintain the children’s accustomed standard of living. Hunt v. Hunt, 698 P.2d 1168 (Alaska 1985).

Review of child support awards. —

As in other cases where discretionary authority is involved, the supreme court shall not reverse the trial court in the absence of the showing of an abuse of discretion, and it shall not find an abuse of discretion unless it is left with the definite and firm conviction on the whole record that the judge made a mistake in awarding the child support he did. Brenton v. Brenton, 564 P.2d 1225 (Alaska 1977); Faro v. Faro, 579 P.2d 1377 (Alaska 1978).

Trial court must disclose calculations. —

A trial court abused its discretion in failing to disclose the actual numbers it used to calculate a child support award. Terry v. Terry, 851 P.2d 837 (Alaska 1993).

Under former paragraph AS 9.55.210(5) concerning appointment of trustees , the burden of proof regarding defendant’s ability to comply with a court order of support should remain with the defendant. Johansen v. State, 491 P.2d 759 (Alaska 1971); Public Defender Agency v. Superior Court, Third Judicial Dist., 534 P.2d 947 (Alaska 1975); Johnson v. Johnson, 544 P.2d 65 (Alaska 1975).

Remand required. —

Where throughout the trial, wife argued that $350 per month child support was adequate, while husband maintained that it was excessive, award to wife for more than she asked required remand for a hearing in the absence of anything in the record explaining the award. Smith v. Smith, 673 P.2d 282 (Alaska 1983).

Trial court erred in considering the needs of a divorcing couple’s children when making an unequal distribution of property, where findings were required as to why the needs of the children could not be met with child support alone. Rodvik v. Rodvik, 151 P.3d 338 (Alaska 2006).

Where husband lacked notice and an opportunity to be heard on the issue of premarital child support arrearage when the wife first raised the issue during final argument, the superior court’s order for premarital child support had to be remanded because it violated the husband’s due process rights. Heustess v. Kelley-Heustess, 158 P.3d 827 (Alaska 2007).

Mortgage payment as children's standard of living. —

The superior court properly treated the custodial parent’s monthly mortgage expenses as a constituent part of “the standard of living of the children” under Rule 90.3(c)(2) when awarding an adjustment to the base amount. Moore v. Moore, 893 P.2d 1268 (Alaska 1995).

Failure to consider value of equity accumulated in joint family residence during marriage as marital asset. —

Where parties contributed from their salaries to mortgage payments on the house owned by the husband prior to the marriage, and both actively participated in the management and maintenance of the property during the 11-year marriage, the trial court erred in characterizing the property as the husband’s separate asset. Burgess v. Burgess, 710 P.2d 417 (Alaska 1985).

III.Alimony

Property disposition favored over alimony. —

Courts should be encouraged to provide for the financial needs of spouses by a property disposition rather than by alimony. Malone v. Malone, 587 P.2d 1167 (Alaska 1978); Bussell v. Bussell, 623 P.2d 1221 (Alaska 1981).

This section authorizes an award of alimony after a divorce decree has been entered, even though the original decree is silent on the subject. Van Brocklin v. Van Brocklin, 635 P.2d 1186 (Alaska 1981).

Alimony defined. —

Alimony is an allowance a husband is required to pay his wife for her maintenance following or pending her divorce or legal separation from him. It may also include an award made for the support of minor children. Goggans v. Osborn, 237 F.2d 186, 16 Alaska 451 (9th Cir. Alaska 1956).

Alimony is in no way a property settlement, but is the provision made for the support of the wife. Lewis v. Lewis, 785 P.2d 550 (Alaska 1990).

“Maintenance,” as that term is used in this section, is synonymous with “alimony.” Van Brocklin v. Van Brocklin, 635 P.2d 1186 (Alaska 1981).

Who may receive alimony. —

Permanent alimony may, in the discretion of the court, be allowed to either the husband or wife. Olsen v. Olsen, 5 Alaska 459 (D. Alaska 1916).

The duty to pay alimony, as well as support money for children, is public in nature. Goggans v. Osborn, 237 F.2d 186, 16 Alaska 451 (9th Cir. Alaska 1956).

And allowance requires court action despite contract. —

Although parties may contract as between themselves concerning the amount of alimony, the allowance of alimony is incidental to the divorce procedure and requires the court’s intervention to give it validity. Goggans v. Osborn, 237 F.2d 186, 16 Alaska 451 (9th Cir. Alaska 1956).

When a husband brings suit for divorce, granting alimony to the wife is almost a matter of course, for the presumption of the law is that she has no separate means, as the husband usually holds the purse strings. Van Atta v. Van Atta, 6 Alaska 266 (D. Alaska 1920).

The statutory standards for an alimony award are that it be “just and necessary.” Messina v. Messina, 583 P.2d 804 (Alaska 1978).

No alimony where property provides support. —

An award of permanent alimony should not be made where the court can provide for the reasonable needs of the spouse seeking alimony from the property available for division in a divorce proceeding. Where property can provide support, alimony is neither just nor necessary. Hilliker v. Hilliker, 755 P.2d 1111 (Alaska 1988).

Factors to be considered in award. —

The principal factors to be considered by the trial court in resolving property division and alimony issues are: The respective ages of the parties; their earning ability; the duration and conduct of each during the marriage; their station in life; the circumstances and necessities of each; their health and physical condition; their financial circumstances, including the time and manner of acquisition of the property in question, its value at the time, and its income producing capacity if any. Groff v. Groff, 408 P.2d 998 (Alaska 1965); Stroecker v. Stroecker, 428 P.2d 384 (Alaska 1967); Sheridan v. Sheridan, 466 P.2d 821 (Alaska 1970); Vanover v. Vanover, 496 P.2d 644 (Alaska 1972); Burrell v. Burrell, 537 P.2d 1 (Alaska 1975); Courtney v. Courtney, 542 P.2d 164 (Alaska 1975); Schoning v. Schoning, 550 P.2d 373 (Alaska 1976); Hager v. Hager, 553 P.2d 919 (Alaska 1976); Faro v. Faro, 579 P.2d 1377 (Alaska 1978); Hinchey v. Hinchey, 625 P.2d 297 (Alaska 1981), overruled, Dowling v. Dowling, 679 P.2d 480 (Alaska 1984).

In determining whether separate property acquired before marriage should be invaded, the court should particularly consider factors such as the duration of the marriage, the conduct of the parties during the marriage, the manner of acquisition of the property, its value at the time of acquisition and at the time of the property division, and any other factors bearing on whether the equities dictate that the other spouse is entitled to share in that property. Vanover v. Vanover, 496 P.2d 644 (Alaska 1972); Burrell v. Burrell, 537 P.2d 1 (Alaska 1975).

Courts making property divisions should consider each spouse’s relative contributions to the marriage, whether of a pecuniary or of a more intangible nature. Bussell v. Bussell, 623 P.2d 1221 (Alaska 1981).

A spousal support judgment in favor of the wife was not void due to lack of due process when the judgment was entered because the husband had notice that spousal support would be addressed, he knew the wife’s mental state and indigence would be relied on for an award, and a pretrial order explicitly included spousal support as a trial issue. The husband was not barred from discovering the wife’s finances or mental state, and his failure to conduct discovery did not mean his due process notice was insufficient. Blaufuss v. Ball, 305 P.3d 281 (Alaska 2013).

But such factors are not substitutes for statutory standard. —

The factors to be considered in an alimony award are the same as those that are relevant where the sole issue is the division of marital property but, while those factors, which the supreme court has set out in various cases, do supply some guidance as to when and to what extent alimony is “just and necessary,” they are not substitutes for the statutory standard, nor are they all that should be said about the standard. Messina v. Messina, 583 P.2d 804 (Alaska 1978).

Failure to address any of the relevant statutory factors resulted in remand to consider subparagraph (a)(4)(A) through (I) with particular emphasis to the earning capacities and health of parties, and the income producing capacity of properties. Money v. Money, 852 P.2d 1158 (Alaska 1993).

Considerations in determining whether to award alimony. —

Section 308 of the Uniform Marriage and Divorce Act and the comment pertaining thereto should be considered, together with the factors mentioned in such cases as Schoning v. Schoning, 550 P.2d 373 (Alaska 1976), in determining when it is necessary and just that alimony be awarded. Messina v. Messina, 583 P.2d 804 (Alaska 1978).

Section 308 of the Uniform Marriage and Divorce Act, approved by the National Conference of Commissioners on Uniform State Laws and recommended for passage by the states by the American Bar Association, provides for alimony only if the spouse seeking maintenance: (1) lacks sufficient property to provide for his reasonable needs; and (2) is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian may not be required to seek employment outside the home. Messina v. Messina, 583 P.2d 804 (Alaska 1978).

The comment pertaining to these provisions states that the intention of the provisions of the Uniform Marriage and Divorce Act relating to alimony is to encourage the court to provide for the financial needs of the spouses by property disposition rather than by an award of maintenance. Only if the available property is insufficient for the purpose and if the spouse who seeks maintenance is unable to secure employment appropriate to his skills and interests or is occupied with child care may an award of maintenance be ordered. Messina v. Messina, 583 P.2d 804 (Alaska 1978).

It was not an abuse of discretion to award the wife spousal support where the court properly considered a number of the statutory factors, including difference in annual gross income and the effect of the wife’s upcoming surgery on her income; there was no indication that the wife’s injuries from a car accident or her work-related injuries affected the award. Novak v. Novak, — P.3d — (Alaska Aug. 26, 2015)(memorandum decision).

Further findings were required as to an alimony award because (1) the court did not find if a greater allocation of the marital estate would meet a wife's needs, and (2) it was error to defer to the wife's preference to receive alimony instead of a larger share of the marital estate. Hockema v. Hockema, 403 P.3d 1080 (Alaska 2017).

Significant health issue. —

It was no error to award a wife alimony without finding the wife's significant health issue because such a finding was not required. Hockema v. Hockema, 403 P.3d 1080 (Alaska 2017).

Income of wife is a factor to be taken into account in finding the amount of alimony and maintenance. Olsen v. Olsen, 3 Alaska 616 (D. Alaska 1909).

Sizable award requires careful inquiry. —

When a spouse’s disabilities and lack of work experience make the alimony award sizable, it is imperative that the trial court inquire into the specific needs of the recipient spouse before making the award. Jones v. Jones, 835 P.2d 1173 (Alaska 1992).

Improper basis for denial of award. —

If the superior court felt it could not award spousal support due to the denial of the ex-wife’s first motion for relief from judgment, this was error; the order denying the first motion for relief from judgment had nothing to do with whether the legal separation property division was fair and equitable. Bulger-Post v. Post, — P.3d — (Alaska Apr. 8, 2015)(memorandum decision).

Trial court is vested with broad discretion in making alimony determinations and where there is no clear abuse of that discretion the supreme court will not interfere. Faro v. Faro, 579 P.2d 1377 (Alaska 1978).

Temporary forms of alimony preferred. —

Either rehabilitative alimony or reorientation alimony where appropriate is, in general, to be preferred to permanent alimony because it is generally undesirable to require one person to support another on a long-term basis in the absence of an existing legal relationship. Jones v. Jones, 835 P.2d 1173 (Alaska 1992).

Rehabilitative designation. —

Designation of alimony award as rehabilitative did not limit the award to rehabilitation. By awarding wife alimony to aid her in preparing for the job market and to help her organize her portion of the marital estate assets, the superior court effectively awarded wife both rehabilitative and reorientation alimony. Money v. Money, 852 P.2d 1158 (Alaska 1993).

Rehabilitative alimony. —

Wife's rehabilitative alimony award was not required because it was no longer feasible for the wife to return to school. Hockema v. Hockema, 403 P.3d 1080 (Alaska 2017).

Reorientation and rehabilitative awards of alimony permissible. —

Although reorientation and rehabilitative alimony serve separate goals, require different findings, and are consequently distinct forms of temporary support, they are not necessarily mutually exclusive; in some instances, when supported by the record, both may be appropriate. Davila v. Davila, 876 P.2d 1089 (Alaska 1994).

Rehabilitative alimony award held abuse of discretion. —

Trial court’s award of rehabilitative alimony was an abuse of discretion where the wife had a college degree and was employed at the time of the trial, and she disclaimed any need for or intent to seek retraining. Richmond v. Richmond, 779 P.2d 1211 (Alaska 1989), overruled in part, Hansen v. Hansen, 119 P.3d 1005 (Alaska 2005).

Rehabilitative alimony award not clearly unjust. —

Wife was not required to improve her skills during the parties separation from 1975 to 1979 because the parties did not consider their marriage ended in 1975. Thus an award of rehabilitative alimony for one year was not unjust. Bussell v. Bussell, 623 P.2d 1221 (Alaska 1981).

No abuse of discretion in alimony award. —

Where the trial court included in its calculations of the effect of taxes or payments received by the parties from the sale of an asset, and that alimony would be a deduction from the husband’s income and taxable to the wife, the award of alimony was not clearly unjust. Hinchey v. Hinchey, 625 P.2d 297 (Alaska 1981), overruled, Dowling v. Dowling, 679 P.2d 480 (Alaska 1984).

Superior court did not abuse its discretion in awarding the wife $600 per month for 31 months as temporary rehabilitative support, where the husband was a well paid city employee and the wife had few job skills and no assets with which to provide for herself and her children while she attended college. Bays v. Bays, 807 P.2d 482 (Alaska 1991).

There was nothing inappropriate in the court considering the wife’s need to support her son from a former marriage in awarding reorientation alimony. Notkin v. Notkin, 921 P.2d 1109 (Alaska 1996).

An award of $5,500 in cash for reorientation to be taken out of husband’s retirement account may violate the preference for property division over alimony. However, because this amount comes from the same source and is a one time payment, regardless of how it is labeled, any error is harmless. Notkin v. Notkin, 921 P.2d 1109 (Alaska 1996).

An award that extended for nearly 7 years was too long to qualify as reorientation alimony, but it was supported by findings that wife’s earning capacity was greatly decreased and that she suffered from a number of health problems. Gallant v. Gallant, 945 P.2d 795 (Alaska 1997).

The court did not abuse its discretion in making an award of spousal support without accounting for the investment value of the marital home, and without characterizing a portion of the maintenance payments as rehabilitative alimony contingent upon the wife’s enrollment in vocational training. Broadribb v. Broadribb, 956 P.2d 1222 (Alaska 1998).

Where the court’s order of reorientation alimony mirrored the plaintiff’s request, and where the appellate court had directed the trial court to adjust its property distribution to further the goal articulated in its findings of awarding her the greater share of the marital assets, there was no abuse of discretion in setting the alimony award. Tollefsen v. Tollefsen, 981 P.2d 568 (Alaska 1999).

Since a court may award alimony of indefinite duration when it is just and necessary, there was no abuse of discretion where the court carefully considered the evidence in light of the statutory factors and justified a long-term award on the basis of the wife’s lack of work experience, her responsibilities as her child’s primary custodial parent, her deafness, her lack of job prospects, and her limited ability to retrain for employment. Hammer v. Hammer, 991 P.2d 195 (Alaska 1999).

Spousal support award was not an abuse of discretion because the court’s findings that the husband had surplus income and that the wife was accruing a deficit were not clearly erroneous; the award would provide both parties with a monthly income that would allow them to meet their anticipated monthly expenses. Urban v. Urban, 314 P.3d 513 (Alaska 2013).

Spousal support required to allocate economic effect. —

Economic effect of the legal separation property division unfairly favored the ex-husband, and as there was no litigation of the underlying property division issues in the legal separation proceeding because the ex-wife did not participate, the legal separation court’s conclusion that the property division was equitable should not have been given any preclusive effect; the superior court was bound to follow the statutory requirement to fairly allocate the economic effect of divorce, which required an award of spousal support in this case. Bulger-Post v. Post, — P.3d — (Alaska Apr. 8, 2015)(memorandum decision).

Substantial evidence to support award. —

Substantial evidence in support of the trial court’s finding that the spouse awarded alimony was not employable justified award of permanent alimony. Jones v. Jones, 835 P.2d 1173 (Alaska 1992).

Rehabilitative alimony improperly denied. —

The trial court did not adequately explain its decision with specific findings to eliminate rehabilitative alimony in favor of an increased award of reorientation alimony, where spouse had expressly requested rehabilitative alimony to assist her in obtaining a college degree and had provided specific information to support her request. Davila v. Davila, 876 P.2d 1089 (Alaska 1994).

Bankruptcy will not relieve a husband of his obligation to make alimony payments. Goggans v. Osborn, 237 F.2d 186, 16 Alaska 451 (9th Cir. Alaska 1956).

Contempt proceedings will lie for the wilful refusal of a husband to pay alimony. Goggans v. Osborn, 237 F.2d 186, 16 Alaska 451 (9th Cir. Alaska 1956).

Conveyance by husband to prevent alimony is fraudulent. —

A conveyance made by the husband in anticipation of the wife’s libel for divorce, and to prevent her from recovering alimony, is fraudulent, and may be set aside unless the purchaser took without notice and for value. Ellis v. Ellis, 8 Alaska 373 (D. Alaska 1933).

If grounds for divorce existed before conveyance. —

Where a wife can establish her right to a divorce, she is also entitled to have set aside any conveyance previously made by her husband with a fraudulent intention of depriving her of her right to alimony, but the cause of suit in her behalf, according to the authorities, must have arisen prior to the time of the alleged conveyance. Ellis v. Ellis, 8 Alaska 373 (D. Alaska 1933).

Divorce decreed to wife establishes wife's right to attach conveyance. —

The right of a woman to question a conveyance made by her husband can never arise until the decree of divorce, which establishes the fact that she had a cause of suit against her husband, and fixes the time when the cause of suit arose, is made; whenever that decree is made by a court of competent jurisdiction, it arms the injured wife with power to call in question the validity of any conveyance made by her husband after the cause of suit arose. Ellis v. Ellis, 8 Alaska 373 (D. Alaska 1933).

And alimony decree makes wife creditor for such purpose. —

A judgment or decree awarding alimony to the wife is sufficient to establish her rights as a creditor of the husband to impeach a conveyance made by him with intent to defraud her of the alimony. Ellis v. Ellis, 8 Alaska 373 (D. Alaska 1933).

Retirement terminated agreement. —

A financial agreement entered into when parties petitioned to dissolve their marriage provided for permanent spousal support, terminable only on wife’s death or remarriage, terminated on husband’s voluntary retirement. Keffer v. Keffer, 852 P.2d 394 (Alaska 1993).

Husband’s retirement was not voluntary because his job was abolished and he was eligible for retirement and took it. Keffer v. Keffer, 852 P.2d 394 (Alaska 1993).

Spousal support based on retired obligor's usual salary. —

In a dispute over a property settlement agreement, the extrinsic evidence offered by the former wife showed that the proper interpretation of the word “income” was an amount comparable to the former husband’s usual dentistry salary; therefore, he was required to pay her spousal support for five years based on his dentist salary, even if he retired. Burns v. Burns, 157 P.3d 1037 (Alaska 2007).

Obligation to pay alimony terminates on death of obligor absent contrary provision. —

Absent a specific agreement or decree provision to the contrary, the obligation to pay alimony terminates upon the death of the obligor. Estate of Kuhns v. Kuhns, 550 P.2d 816 (Alaska 1976).

But contract may create obligation binding on estate. —

Parties in a divorce proceeding may undertake by contract to create an obligation to pay alimony binding on the obligor’s estate and successors. Estate of Kuhns v. Kuhns, 550 P.2d 816 (Alaska 1976).

Burden of establishing intention that obligation continue. —

In the absence of unequivocal terms, the burden should be upon the recipient of the alimony to establish the parties’ intention that the obligation continue after the death of the obligor. Estate of Kuhns v. Kuhns, 550 P.2d 816 (Alaska 1976).

Obligation not enforceable against decedent's estate. —

Obligation of the decedent to make alimony payments pursuant to a property settlement agreement in which there was a failure to expressly provide for continuation of alimony payments after death was not enforceable against the decedent’s estate. Estate of Kuhns v. Kuhns, 550 P.2d 816 (Alaska 1976).

Alimony award reversed. —

Alimony award was reversed on the ground that a property division adequately satisfied the spouse’s financial needs; there is a preference for satisfying a spouse’s financial needs with a property division. Gabaig v. Gabaig, 717 P.2d 835 (Alaska 1986).

IV.Division of Property

A.In General

Property division generally. —

Paragraph (a)(4) grants the trial court broad discretion in fashioning a property division in divorce actions, and empowers the trial court to divide all property acquired during the marriage and to invade separate property of either spouse if a balancing of the equities so requires. The supreme court will not disturb a division made within the parameters of the statute unless it is clearly unjust, but whether the trial court applied the appropriate legal standards in exercising its broad discretion is a question of law regarding which the supreme court may substitute its independent judgment on appeal. Laing v. Laing, 741 P.2d 649 (Alaska 1987).

Paragraph (a)(4) places all property acquired during the marriage, whether joint or separate, before the court for purposes of division, and also authorizes invasion of premarital holdings when the balancing of the equities between the parties requires it. Julsen v. Julsen, 741 P.2d 642 (Alaska 1987).

All property acquired during the marriage is available for distribution, excepting only inherited property and property acquired with separate property which is kept as separate property. Lewis v. Lewis, 785 P.2d 550 (Alaska 1990).

Alaska law provides that the divorce court has the power to reorder the pre-dissolution interests of the parties as required for an equitable result, even if this requires the court to invade the pre-marital property of one spouse for the benefit of the other. Yerrington v. Yerrington, 144 B.R. 96 (B.A.P. 9th Cir. Alaska 1992), aff'd, 19 F.3d 32 (9th Cir. 1994).

Trial court correctly classified certain property as gifts and, given the minor amount in controversy and the size of the estate, any error in classifying the disputed property would have had a negligible effect on equitable distribution. The case involved a total marital estate valued at over $2.8 million and the gifts in dispute represented less than .05 percent of the estate. Fortson v. Fortson, 131 P.3d 451 (Alaska 2006).

Home acquired prior to marriage not transmuted to marital property. —

Superior court erred in finding in its property division order that the condominium at issue had transmuted into the couple's marital property because the condominium was originally the husband's separate property and the evidence at trial did not demonstrate that the husband intended to donate the condominium to the marital estate where the wife's unexplained and unilateral belief that she was investing in the property by making other contributions to the marriage was not evidence of the husband's donative intent, and the couple's use of the property as the marital residence showed only that the condominium served an important marital purpose. Kessler v. Kessler, 411 P.3d 616 (Alaska 2018).

Property disposition favored over alimony. —

Courts should be encouraged to provide for the financial needs of spouses by a property disposition, rather than by alimony. Malone v. Malone, 587 P.2d 1167 (Alaska 1978); Bussell v. Bussell, 623 P.2d 1221 (Alaska 1981).

The rule establishing a preference for meeting the parties’ needs with the division of property, rather than alimony, where the marital assets are adequate to do so, does not apply to rehabilitative alimony or support of limited duration. Bays v. Bays, 807 P.2d 482 (Alaska 1991).

Division without regard to fault. —

Tension between paragraph (a)(4), property to be divided without regard to fault, and subparagraph (E) thereof, conduct of parties to be considered, is resolved by construing “fault” in paragraph (a)(4) to refer to moral or legal misconduct which has led to the failure of the marriage, but not to economic misconduct which has unreasonably depleted marital assets. Jones v. Jones, 942 P.2d 1133 (Alaska 1997).

It was not error to consider a father's criminal conviction when dividing marital property because (1) the court was required to consider the parties' conduct, (2) the court properly found, when considering the circumstances and necessities of each party, that the father's conviction, which limited the father's earning capacity, was a “self-inflicted wound,” and (3) the court was only barred from considering moral or legal misconduct which led to the failure of the marriage. Jerry B. v. Sally B., 377 P.3d 916 (Alaska), modified, — P.3d — (Alaska 2016).

Presumption favoring equal division. —

In the absence of findings to warrant an unequal division, an equal division of the marital estate is presumptively the most equitable. Miles v. Miles, 816 P.2d 129 (Alaska 1991).

An equal division of marital property is presumptively just. Berry v. Berry, 978 P.2d 93 (Alaska 1999).

In determining the equitable distribution of marital property, the court adequately considered the parties’ 12-year age difference. The trial court was aware of the difference and that the husband’s anticipated age of retirement was approaching; however, with the husband’s high salary he could readily make up for the unequal property division by increased savings over his remaining work life, or by working one additional year beyond his planned retirement. Cartee v. Cartee, 239 P.3d 707 (Alaska 2010).

Lump sum award to equalize property division held proper. —

Trial court did not abuse its discretion in a divorce proceeding by requiring a spouse to make a lump sum payment to equalize the property division because the divorce judgment statute did not require installment payments as part of the division of the marital estate. Rasmussen v. Rasmussen, — P.3d — (Alaska Mar. 18, 2015) (memorandum decision).

Superior court properly awarded, inter alia, a husband a fourplex and a mobile home park that he had owned before marriage and that were later included in the parties' revocable trust and awarded a large equalization payment to the wife because, despite the parties' arguments, the husband failed to overcome the evidentiary presumption that arose once he directed his separate income into the joint account, and the court considered the four statutory factors to achieve an equitable division of the property. Phillips v. Bremner-Phillips, 477 P.3d 626 (Alaska 2020).

Extraordinary circumstances inapplicable. —

Allegation of extraordinary circumstances under Civil Rule 60(b)(6) did not justify relief that effectively would have given former husband rent-free occupancy of the marital home for nine years; nor did delay in sale of the home and former wife’s alleged refusal to cooperate with a potentially beneficial refinancing appear to be extraordinary circumstances justifying relief under the rule. Knutson v. Knutson, 973 P.2d 596 (Alaska 1999).

Award facilitating career training. —

Property awards made with the purpose of facilitating career training are distinct from rehabilitative alimony awards, and should be analyzed by the trial court under the property division statute, not the rehabilitative alimony standard. Cartee v. Cartee, 239 P.3d 707 (Alaska 2010).

Presuming sufficient property to provide for needs. —

Policy of encouraging trial courts to provide for parties’ financial needs by property disposition rather than by alimony presumes that there is sufficient property to provide for the parties’ needs. Dixon v. Dixon, 747 P.2d 1169 (Alaska 1987).

Property rights may be adjudicated without prayer. —

The court has full power to adjudicate the property rights of the parties to a divorce action even though the plaintiff has not specifically prayed for such relief. Rhodes v. Rhodes, 370 P.2d 902 (Alaska 1962).

All property of the parties, both separate and joint, is before the court for disposition in a divorce action. Rhodes v. Rhodes, 370 P.2d 902 (Alaska 1962).

Reopening divorce decree to award individual fishing quotas. —

Where quota shares and inidividual fishing quotas were awarded after the decree of dissolution was entered, but were based on the couple’s vessel’s activity during the marriage, the quota shares were divisible marital property; thus the court did not err in granting the wife’s Rule 60(b) motion to modify the decree. McGee v. McGee, 974 P.2d 983 (Alaska 1999).

Valuation is factual determination. —

A trial court’s valuation of marital property is a factual determination. Rice v. Rice, 757 P.2d 60 (Alaska 1988).

Time of valuing property. —

Valuing property on the date of separation rather than the date of divorce was not error, as the parties had not comingled their financial affairs since their separation, which was thus a convenient and appropriate time at which to value the marital property for division. Nelson v. Nelson, 736 P.2d 1145 (Alaska 1987).

The date on which the trial court values marital property generally should be as close as practicable to the date of trial. Doyle v. Doyle, 815 P.2d 366 (Alaska 1991).

In special situations, the trial court may value marital property as of the date of separation of the parties. However, in that event, there should be specific findings as to why the date of separation is the more appropriate choice for valuation. Doyle v. Doyle, 815 P.2d 366 (Alaska 1991).

Property should be valued for division purposes at the date of trial rather than the date of separation. However, the separation date may be used when special circumstances of the case demonstrate that a truly fair and appropriate property evaluation and division of assets cannot otherwise be achieved. Thomas v. Thomas, 815 P.2d 374 (Alaska 1991).

The husband’s payment of the mortgage on the marital home between the date of separation of the parties and the trial date did not constitute a special circumstance warranting valuation of the property at the time of separation rather than the trial date. Rodriguez v. Rodriguez, 908 P.2d 1007 (Alaska 1995).

Ordinarily, the date of valuation of a home, which may be distinct from the date employed to distinguish marital from post-marital property, should be as close as practicable to the date of trial. This is to provide recent rather than stale financial valuations. The date for distinguishing marital from post-marital property, however, is the date of separation. Brown v. Brown, 914 P.2d 206 (Alaska 1996).

While the date for classification of property is that of separation, the proper date for valuation is one as close as practicable to that of trial, and the trial court’s valuation of the the husband’s 401(k) plan at the time of separation deprived the wife of the interest earned on the marital share of the plan. Leis v. Hustad, 22 P.3d 885 (Alaska 2001).

In a divorce action, the trial court abused its discretion under this section when it valued the couple’s marital house at the time of their separation rather than at the date of the trial because (1) the fact that the parties ceased operating as an economic unit merely marked the date of separation and was not a reason for valuing marital property at the date of separation; (2) the fact that an appraisal of the house was made at the date of separation was irrelevant both because a more recent appraisal was also made and because the first appraisal was just the sort of stale financial information that the time of trial rule was meant to eschew; and (3) the deceptive conduct of the husband in obtaining title to the house just prior to the separation did not justify defeasing a part of the husband’s interest in the house, including the husband’s interest in its appreciation. Heustess v. Kelley-Heustess, 158 P.3d 827 (Alaska 2007).

In a divorce proceeding, it was error to value the parties’ real property as of the date of the first day of trial when the second and final trial day occurred over one year later. By varying from the Ogard rule and choosing an earlier valuation date, the trial court assigned the parties’ Arizona home an artificially high value. Stevens v. Stevens, 265 P.3d 279 (Alaska 2011).

Trial court erred in valuing the mortgage on a marital home as of the time of separation rather than the time of trial; the husband’s post-separation mortgage payments did not justify an earlier valuation date. Beals v. Beals, 303 P.3d 453 (Alaska 2013).

Fair market value as valuation index. —

Fair market value, rather than purchase price values, was the appropriate index of valuation for the parties’ personal property. Doyle v. Doyle, 815 P.2d 366 (Alaska 1991).

Valuation by parties. —

A trial court is not bound by a buy-sell agreement valuation, but may consider such a valuation, especially when it is supported by other valuation methods. Money v. Money, 852 P.2d 1158 (Alaska 1993).

The rescission approach to property division was not appropriate as the parties owned a home together and maintained joint bank accounts and credit cards; the parties had already stipulated to the value of the home and agreed that the stipulated value would be used in the property division; and the court was not required to consider the higher value suggested by the appraisal that was completed pursuant to the wife’s refinancing of the home. Novak v. Novak, — P.3d — (Alaska Aug. 26, 2015) (memorandum decision).

Valuation of post-retirement military medical benefits.—

For purposes of AS 25.24.160 , the superior court failed to value the husband's post-retirement medical benefits for purposes of an equitable division and distribution of the marital estate; the order that the husband pay the wife an amount to enable her to purchase an equivalent policy did not qualify as a valuation and could not substitute for an appropriate equitable distribution of the marital estate, and this amounted to reversible error. Grove v. Grove, 400 P.3d 109 (Alaska 2017).

For purposes of AS 25.24.160 , the husband entered the military six months before the marriage, and on remand the superior court was to recalculate the portion of the husband's military medical benefits earned during the marriage; otherwise, the superior court correctly characterized the husband's post-retirement medical benefits as marital. Grove v. Grove, 400 P.3d 109 (Alaska 2017).

Evidence of valuation. —

Where a party identifies a significant marital asset but presents no evidence as to its value, the best practice is for the trial court to direct the parties, or the delinquent party having the best access to the proof, to fill the evidentiary void. Root v. Root, 851 P.2d 67 (Alaska 1993).

It was clear error for the court to rely on a possible but uncertain future stock valuation when very recent evidence of the stock’s actual value was available: approximately two weeks before trial, the company purchased another shareholder’s capital stock for $206,600, at $1,033 per share. That was essentially contemporaneous evidence of the validity of the existing share price in the husband’s stock agreement and the actual value of the capital stock. Helen S. K. v. Samuel M. K., 288 P.3d 463 (Alaska 2012).

Two property tracts were marital property because those tracts were acquired during premarital cohabitation and the parties’ actions showed an intent to develop and operate the properties jointly. However, the court’s valuation of the tracts was improper where it was based only on assessed value and application of an arbitrary formula to account for improvements. It is the duty of the court to require parties to provide evidence of actual value of their property. Hughes v. Hughes, — P.3d — (Alaska May 1, 2013) (memorandum decision).

Superior court's valuation of the husband's tools was well within the range supported by the evidence because the court was faced with conflicting evidence suggesting a value for the tools somewhere between $13,340 and $100,000; the evidence included testimony by an expert appraiser hired by the estate; tax returns showing write-offs for tool purchases; the husband's will; the testimony of the wife's son (a mechanic who worked with the husband); and the testimony of the husband's friends. Aubert v. Wilson, 483 P.3d 179 (Alaska 2021).

Valuation of damaged property. —

Supreme court agreed with a husband that in the face of undisputed testimony that certain items of his property were ruined, assigning any value to the ruined property was clearly erroneous. Pasley v. Pasley, 442 P.3d 738 (Alaska 2019).

Buying out spouse's interest in marital home. —

It was error for trial court to look to mortgage debt at the time of dissolution rather than at the time of sale, and to fail to divide an equity withdrawal, in calculating the amount one former spouse was required to pay the other to buy out interest in the marital home. Knutson v. Knutson, 973 P.2d 596 (Alaska 1999).

Division where assets unreasonably depleted. —

The proper method for dealing with an unreasonable depletion of marital assets would be for the trial court to recapture the proven losses by adding their value to the marital estate before making the equitable division and then crediting that part of the value to the account of the party responsible for the unreasonable depletion. Jones v. Jones, 942 P.2d 1133 (Alaska 1997).

A party must point to more than the fact that her spouse spent excess funds during marriage and cannot account for those funds to support a finding that marital assets were unreasonably depleted. Elliott v. James, 977 P.2d 727 (Alaska 1999).

It was not error for the trial court to value the marital account for purposes of dividing it between the parties at the time the parties separated, as opposed to the time of trial, because there was evidence that the husband had improperly used the account to purchase items that depreciated in value and had completely depleted the account at the time of trial. Miller v. Miller, 105 P.3d 1136 (Alaska 2005).

It was not error to impute continuing interest to former husband in a portion of marital property, in light of conduct that constituted intent to engage in economic misconduct, either fraud or massive waste, where evidence showed that he had executed a quitclaim deed on out-of-state investment property to his brother to protect his share in the real estate from the threat of division, and showed apparent willful waste of marital assets or a sham transaction designed to conceal a continuing interest in the property. Forshee v. Forshee, 145 P.3d 492 (Alaska 2006).

Superior court did not abuse its discretion in dividing the marital estate equally as the ex-husband did not unreasonably deplete the parties' marital assets because the loans taken out on the husband's 401(k) during the marriage were for legitimate marital purposes; and the proceeds derived from the sale of a home to the ex-wife's son were used for legitimate marital purposes. Gambini v. Hamilton, 440 P.3d 184 (Alaska 2019).

Recapture of marital assets. —

Superior court erred in classifying two vehicles as marital assets and in awarding them to the wife as the husband's daughter had title to the vehicles by the time of trial; the superior court did not produce an order of recapture including factual findings that the vehicles were actually converted to non-marital form; and, although the court made a finding that the husband's children (the beneficiaries of his estate) attempted to hide and sell marital assets prior, the court did not specify which particular assets were hidden and sold. On remand, the superior court would have to make specific factual findings regarding whether the assets were converted to non-marital form and, if so, whether it was recapturing them. Aubert v. Wilson, 483 P.3d 179 (Alaska 2021).

The division of property in a divorce action involves a three-step process; the court 1) determines what property is available for distribution, 2) values the property, and 3) determines the most equitable allocation. Carlson v. Carlson, 722 P.2d 222 (Alaska 1986); Jones v. Jones, 835 P.2d 1173 (Alaska 1992).

When a marriage is of long duration or assets are commingled, the correct method of property division involves (1) identifying the specific property available for distribution, (2) determining the value of this property, and (3) determining the most equitable division of the property, beginning with the presumption that an equal division is most equitable. Lowdermilk v. Lowdermilk, 825 P.2d 874 (Alaska 1992).

Trial courts must follow a three-step process in equitably dividing marital property: (1) the court determines what property is available for distribution; (2) the court values the property; and (3) the court equitably divides the property. If at the third step the court finds that an equitable division is not possible using the marital property alone, then the court must determine whether invasion of separate property is necessary to balance the equities. If invasion is necessary, then the court must determine what separate property the parties own, value it, and adjust the initial division as needed. Murray v. Murray, 856 P.2d 463 (Alaska 1993).

Classification of property. —

In a divorce proceeding, the husband failed to meet his burden of tracing $50,500 he had withdrawn from certificates of deposit back to a separate property source; therefore, the trial court did not err by characterizing the certificates of deposit as marital property. Bilbao v. Bilbao, 205 P.3d 311 (Alaska 2009).

Superior court properly concluded that a house was marital property where it was purchased during the marriage, and the husband failed to offer any evidence in support of his claim that the down payment on the home came from non-marital funds. Greene v. Greene, — P.3d — (Alaska Oct. 24, 2018) (memorandum decision).

It was error to classify the Missouri property as completely separate and the associated debt as marital because, although marital funds used to reduce the principal debt on the Missouri property created a marital interest in the property that was subject to equitable division in divorce, the evidence indicated the Missouri property decreased in value by over $3,000 between 2011, when the wife received the property from her parents, and the date of trial. On remand, the superior court had to determine how that depreciation affected the marital interest in the property. Aubert v. Wilson, 483 P.3d 179 (Alaska 2021).

Classification of property. —

In a divorce proceeding, the husband failed to meet his burden of tracing $50,500 he had withdrawn from certificates of deposit back to a separate property source; therefore, the trial court did not err by characterizing the certificates of deposit as marital property. Bilbao v. Bilbao, 205 P.3d 311 (Alaska 2009).

Superior court properly concluded that a house was marital property where it was purchased during the marriage, and the husband failed to offer any evidence in support of his claim that the down payment on the home came from non-marital funds. Greene v. Greene, — P.3d — (Alaska Oct. 24, 2018) (memorandum decision).

Classification of property constitutes tool for equitable distribution. —

Process of classifying marital property in a divorce is not an end in itself but simply serves to inform the trial court’s decision on the ultimate issue of what constitutes an equitable distribution of the marital estate. Because the trial court exercises broad discretion in making its final equitable determination, a classification error will result in prejudice only when it appears that the error probably had an appreciable effect on the ultimate determination of equitable distribution. Fortson v. Fortson, 131 P.3d 451 (Alaska 2006).

“Source of funds” approach to classification. —

Under the “source of funds” approach, property is classified according to the classification of the funds used to purchase it. Property purchased on debt is classified according to the funds used to pay off the debt. The source of funds rule, although not adopted per se in this jurisdiction, is not inconsistent with this section. Zimin v. Zimin, 837 P.2d 118 (Alaska 1992).

Property purchased from inherited funds held separate. —

Court properly characterized gold coins as the wife’s separate property where the wife purchased the coins with her share of proceeds from the sale of her separate property, and the evidence failed to show any action by the wife indicating that she intended to transmute the disputed coins into marital property; the coins simply remained untouched and unused in the family’s vault. Thomas v. Thomas, 171 P.3d 98 (Alaska 2007).

Enforcement of prenuptial agreement. —

Prenuptial agreements legally procured and ostensibly fair in result are valid and can be enforced. Brooks v. Brooks, 733 P.2d 1044 (Alaska 1987).

Where a prenuptial agreement had been executed to keep the parties’ premarital assets separate, if the wife consented to gifts to her husband’s sons from a previous marriage with full knowledge that they were being made out of marital property, then the gifts are to be held valid and the wife is not to be credited for one-half their value in distributing the property upon divorce. If, however, the wife consented to the gifts only because she believed they were being made out of her husband’s separate assets, then the gifts are voidable at the wife’s option and she is entitled to be reimbursed for one-half their value. Brooks v. Brooks, 733 P.2d 1044 (Alaska 1987).

Determining status of premarital assets. —

The trial court retains discretion to decide whether a premarital asset remains separate property even where the asset has been treated as joint property. The trial court makes this determination in the context of an equitable division of marital assets and a balancing of the parties’ situation. Miles v. Miles, 816 P.2d 129 (Alaska 1991).

Without a finding that the parties intended to convert a business established by the husband prior to the marriage into marital property, the trial court cannot properly consider the business a marital asset; in determining the existence of this intent, the court can look to the parties’ conduct. Nicholson v. Wolfe, 974 P.2d 417 (Alaska 1999).

It was not error for the trial court to determine that the primary residence, given as a gift to the husband one week before the marriage, had transmuted into marital property when the parties used the home as their only residence during the 15-year marriage and the wife participated in the maintenance and management of the home. Miller v. Miller, 105 P.3d 1136 (Alaska 2005).

It was clear error for the superior court to find that the husband's boat, which it found to be his premarital property, was later transmuted into marital property because the fact that both the husband and wife used the boat and contributed to a new top was insufficient to show donative intent. Further, because the record did not provide any information on the effect of the new top on the boat's value, the superior court should make appropriate factual findings on remand for the active appreciation doctrine to apply. Aubert v. Wilson, 483 P.3d 179 (Alaska 2021).

Premarital assets. —

It is an abuse of discretion for the trial court to shield the property from equitable distribution merely by affixing to the property the label of “premarital asset.” Lowdermilk v. Lowdermilk, 825 P.2d 874 (Alaska 1992).

Trial court did not err in concluding that no adjustment to the marital estate based on premarital contributions was appropriate given the length of the marriage and the negligible premarital financial investments of the parties. Green v. Green, 29 P.3d 854 (Alaska 2001).

When invasion of premarital property authorized. —

Trial court may invade the separate, premarital property of one spouse when necessary to balance the equities between the parties, or when the parties treated such properties as joint holdings in which each took an active interest in the ongoing maintenance, management, and control of the assets. Moffitt v. Moffitt, 749 P.2d 343 (Alaska 1988).

This section authorizes invasion of premarital holdings when the balancing of the equities between the parties requires it. Carlson v. Carlson, 722 P.2d 222 (Alaska 1986).

Nothing prevents a trial court from reaching either party’s separate premarital assets where the equities so require. So long as the parties do marry, the trial court is free to consider the parties’ entire relationship, including any period(s) of premarital cohabitation, in making its property division under paragraph (a)(4), so long as the court observes the distinction which that subsection draws between assets acquired prior to and during coverture. Murray v. Murray, 788 P.2d 41 (Alaska 1990).

When a couple began living together 10 years before their marriage, coverture commenced when the couple began living together, and properties acquired by the husband after cohabitation commenced but before the marriage were deemed marital by virtue of the fact that the parties lived together and later married. Chase v. Chase, 109 P.3d 942 (Alaska 2005).

As the trial court did not attempt to balance the equities, as required by paragraph (a)(4) of this section, and unequally divided the marital estate, awarding property to the wife and debt to the husband, its property division and invasion of separate property was vacated. Odom v. Odom, 141 P.3d 324 (Alaska 2006).

Awarding guns that were marital property to the wife in a divorce proceeding was proper where the husband was subject to 18 U.S.C.S. § 922(g) and not permitted to possess a gun; further, the trial court did not err in making a limited invasion of separate property, which consisted of four guns. Rodvik v. Rodvik, 151 P.3d 338 (Alaska 2006).

It was error to use a wife's eligibility for Indian Health Services (IHS) healthcare to offset a husband's eligibility for TRICARE healthcare, when dividing marital property, because the IHS benefit was the wife's separate property, as the wife was eligible for the benefit from birth, while the TRICARE benefit, to the extent the benefit was earned during the marriage, was marital property, and no equities justified invading the wife's separate property to offset the wife's interest in this marital property. Horning v. Horning, 389 P.3d 61 (Alaska 2017).

Even if the classification of the home equity line of credit (HELOC) as a marital obligation had been erroneous, having determined that the Washington cabin was the ex-wife's separate property, the superior court recognized that her possession of that asset would be threatened if the ex-husband failed to pay his share of the joint obligation for which the cabin was security; thus, the superior court's property division order offset an award of the entire HELCO to the wife by awarding her a portion of the husband's 401(k) equal to one-half the HELOC's principal balance. Gambini v. Hamilton, 440 P.3d 184 (Alaska 2019).

When invasion of premarital asset unauthorized. —

A whole life insurance policy taken out on behalf of husband when he was four years old, although the $13.83 quarterly premiums were paid out of a joint checking account, was not invaded as marital property because the policy paid dividends that offset the annual premiums. Money v. Money, 852 P.2d 1158 (Alaska 1993).

Contributions benefiting separate property of other spouse acquired before marriage. —

Where one spouse has made contributions to the marital community, whether of a pecuniary or of a more intangible nature, and where these contributions have benefited in any manner the separate property of the other spouse acquired before the marriage, the trial court may determine that all or a portion of that property should be included with the property acquired after marriage in effecting a just and equitable division of property. Vanover v. Vanover, 496 P.2d 644 (Alaska 1972); Ross v. Ross, 496 P.2d 662 (Alaska 1972); Burrell v. Burrell, 537 P.2d 1 (Alaska 1975); Bussell v. Bussell, 623 P.2d 1221 (Alaska 1981).

Wife’s efforts in handling insurance and roofing contracts relating to her husband’s premarital real property, and in cleaning the property between renters, were insufficient to require invading the property, where the parties did not reside on the property nor did they jointly incur liability on it. McDaniel v. McDaniel, 829 P.2d 303 (Alaska 1992).

Separate property transmuted into marital property. —

Where the parties had agreed to sell their separate property houses and to buy a home together, this agreement to combine the separate property in essence transmuted the separate property into marital property and should have been considered marital property for purposes of the decree of divorce and distribution. Leis v. Hustad, 22 P.3d 885 (Alaska 2001).

Trial court did not err in finding that husband intended his separate property, including log cabin and two airplanes, to be transmuted into marital property, and thus divisible as such, by virtue of marital use and effort. Green v. Green, 29 P.3d 854 (Alaska 2001).

In a divorce where the evidence showed the parties’ intent to treat a triplex as marital property, the triplex was properly found to have been transmuted from the husband’s separate property to marital property because the husband and wife used the triplex as a marital residence for the first two years of their union and the wife was actively involved in the management and maintenance of the property. Keturi v. Keturi, 84 P.3d 408 (Alaska 2004).

It was not error for the trial court to determine that a cash gift made to the husband during the marriage had transmuted into marital property where the husband had placed the money into a joint account and the wife testified that she considered the account to be marital property in part because the funds were used for ongoing household expenses. Miller v. Miller, 105 P.3d 1136 (Alaska 2005).

Trial court did not fail to grant sufficient weight to the wife’s $107,000 contribution towards a house where the court concluded that she intended to transmute the funds into marital property. Fortson v. Fortson, 131 P.3d 451 (Alaska 2006).

Equipment used or owned by the company the husband started before the marriage was marital property because the parties used the equipment for their business, used business funds to maintain the equipment, depreciated some of the equipment on the company tax returns, and treated the equipment as theirs; the absence of any major repair or alteration to the equipment did not render the findings they were transmuted into marital property erroneous. McCormick v. McCormick, — P.3d — (Alaska Sept. 16, 2015) (memorandum decision).

While under the statute, generally spouses were not liable for the debts of the other spouse incurred before marriage, the superior court did not clearly err in finding that the wife's premarital loan was transmuted into marital debt through loan consolidation; the consolidated loans were incurred during the marriage and were presumptively marital debt, the husband did not show the couple intended part of the consolidated loans to remain separate debt of the wife's, nor did the husband provide a basis on which the superior court could calculate what the separate amount might be. Wagner v. Wagner, 386 P.3d 1249 (Alaska 2017).

Home acquired prior to marriage transmuted to marital property. —

Under paragraph (a)(4) of this section, where a home was purchased by the husband prior to marriage, but the property was used as the couple’s home before and during the marriage and there was evidence of ongoing management and maintenance by both parties, the home was properly considered transmuted into marital property. Abood v. Abood, 119 P.3d 980 (Alaska 2005).

Determination that only one-third of the value of a house was transmuted to marital property and two-thirds remained the wife’s separate property was an abuse of discretion because (1) transmutation converted the entire property from the wife’s separate property to marital property; (2) it was the husband’s contributions and effort in maintaining and improving the house and the parties’ intent before refinancing the house that brought about the transmutation; and (3) with the exception of a small amount of the funds that the trial court found went to pay the husband’s pre-existing debt, all of the proceeds of the refinancing were used for marital purposes — mainly to pay debts on marital property. The husband’s alleged deception in obtaining title to the property just before the parties separated was not shown to be financially harmful and could not under any recognized legal theory justify a defeasance of two-thirds of the husband’s share of the house. Heustess v. Kelley-Heustess, 158 P.3d 827 (Alaska 2007).

The parties’ primary residence was transmuted from separate to marital property, although acquired by the husband before the parties’ relationship began, because the wife’s income went to basic living expenses benefiting both parties, and she contributed to improvements in the form of labor and purchasing supplies. Hughes v. Hughes, — P.3d — (Alaska May 1, 2013) (memorandum decision).

Transmutability of lease income from separate property. —

Where husband had received property from his parents, which was separate property, the trial court erred in determining that the income from the property was transmutable; where appellate review addressed only the issue of transmutation, the allocation of marital assets and the invasion of lease income required the trial court to decide whether the equity required invasion of separate property. State v. Herrmann, 140 P.3d 895 (Alaska Ct. App. 2006).

Wife was not entitled to share in the appreciation of an apartment complex under the doctrine of equitable distribution where husband purchased complex two years before marriage and wife did not participate in the active maintenance, management, or control of the complex during the marriage. Brooks v. Brooks, 733 P.2d 1044 (Alaska 1987).

No debt owed on marital property. —

In a divorce, a duplex purchased by the husband with a work bonus was properly found to be marital property carrying no outstanding debt. Keturi v. Keturi, 84 P.3d 408 (Alaska 2004).

Superior court erred in reimbursing the husband for his efforts both before and during the marriage, while giving him the entire benefit of the wife’s efforts towards conduct of a car repair business during the marriage. Lowdermilk v. Lowdermilk, 825 P.2d 874 (Alaska 1992).

Effect of commingling. —

The act of commingling, in itself, does not automatically establish intent to hold property jointly, and the court always should consider the property’s source when determining what assets are available for distribution. Julsen v. Julsen, 741 P.2d 642 (Alaska 1987).

Effect of party's default on property division. —

Where marital property remained to be divided, a party’s default did not permit the trial court to have a limited ability to focus on liability issues in the property division, and the parties were entitled to present evidence. Hicks v. Pleasants, 158 P.3d 817 (Alaska 2007).

In marriage of short duration, where there has been no significant commingling of assets between the parties, the trial court may, without abusing its discretion, treat the property division as an action in the nature of rescission, aimed at placing the parties in, as closely as possible, the financial position they would have occupied had no marriage taken place. Rose v. Rose, 755 P.2d 1121 (Alaska 1988).

When the marriage is of short duration and the parties do not commingle assets, an alternative method is to treat property division as if it were contract rescission. Lowdermilk v. Lowdermilk, 825 P.2d 874 (Alaska 1992).

Rescission principles. —

Trial court’s decision to apply a modified version of case law, applying rescission principles to some property and then dividing other property equitably under other case law, might be problematic, and the court vacated the property division and remanded for further proceedings. Pfeil v. Lock, 311 P.3d 649 (Alaska 2013).

Rescission not required in marriage of short duration. —

The holding in Rose v. Rose, 755 P.2d 1121 (Alaska 1988) stands for the limited proposition that trial courts have discretion to apply rescission principles in certain circumstances but, since equitable division is the prevailing rule, a trial court is not required to adopt rescission. Nicholson v. Wolfe, 974 P.2d 417 (Alaska 1999).

Consideration of premarital cohabitation in making property division. —

Where parties were legally married for only 34 months of an eight-year relationship, it was error for the trial court to find that they were married for eight years; the court could consider the entire relationship, including periods of premarital cohabitation, in making a property division, so long as it observed the distinction between assets acquired prior to and during coverture. Harrelson v. Harrelson, 932 P.2d 247 (Alaska 1997).

Where a husband and wife lived together for 10 years before marrying, retirement benefits that the wife acquired in the 10 years prior to the couple’s legal marriage could be included in the marital estate. McLaren v. McLaren, 268 P.3d 323 (Alaska 2012).

The parties’ primary residence was transmuted from separate to marital property, although acquired by the husband before the parties’ relationship began, because the wife’s income went to basic living expenses benefitting both parties, and she contributed to improvements in the form of labor and purchasing supplies. Hughes v. Hughes, — P.3d — (Alaska May 1, 2013), (memorandum opinion).

Two property tracts were marital property because those tracts were acquired during premarital cohabitation and the parties’ actions showed an intent to develop and operate the properties jointly. However, the court’s valuation of the tracts was improper where it was based only on assessed value and application of an arbitrary formula to account for improvements. It is the duty of the court to require parties to provide evidence of actual value of their property. Hughes v. Hughes, — P.3d — (Alaska May 1, 2013) (memorandum decision).

Two property tracts were marital property because those tracts were acquired during premarital cohabitation and the parties’ actions showed an intent to develop and operate the properties jointly. However, the court’s valuation of the tracts was improper where it was based only on assessed value and application of an arbitrary formula to account for improvements. It is the duty of the court to require parties to provide evidence of actual value of their property. Hughes v. Hughes, — P.3d — (Alaska May 1, 2013) (memorandum decision).

Where a couple lived together without being married from 1960 through 1968, when they entered a putative marriage, utilization of a relation-back doctrine resulted in the “equitable considerations arising from the reasonable expectation of a continuation of benefits attending the status of marriage entered into in good faith” being applied to a period when the parties chose not to be married, and this result was erroneous. Hager v. Hager, 553 P.2d 919 (Alaska 1976).

Parties' intention to treat items as joint holdings. —

Where parties, by their actions during marriage, demonstrate their intention to treat specific items of property as joint holdings, even though the properties were separately held by one spouse prior to coverture, invasion of one spouse’s property acquired before coverture may be required as a matter of law; such intention is manifest when both spouses can be shown to have taken an active interest in the ongoing maintenance, management, and control of specific assets. Wanberg v. Wanberg, 664 P.2d 568 (Alaska 1983).

Prior award of marital home under domestic violence protective order. —

Because a wife was awarded possession of the marital residence under a domestic violence protective order, it was not an abuse of discretion for the superior court to consider that order in equitably dividing the marital estate. Shear v. Shear, — P.3d — (Alaska Dec. 3, 2014) (memorandum decision).

Property acquired during informal separation. —

Where the parties had reconciled after their informal separation, without ever filing for divorce, and lived together as husband and wife for a full three years after the separation, the trial court did not abuse its discretion in determining that property acquired during the period they lived apart was part of the marital estate. Rodriguez v. Rodriguez, 908 P.2d 1007 (Alaska 1995).

Property acquired after permanent separation but prior to final divorce should be included in the property settlement if it was acquired with property that would otherwise have been subject to division; if the later-acquired property was purchased with property that would not have been divided, then the new property should remain with the purchasing spouse. Hunt v. Hunt, 698 P.2d 1168 (Alaska 1985).

The property division that was essentially an equal division of property owned by the parties at the time of the divorce decree, although they had been separated for four years, was not clearly unjust. Bussell v. Bussell, 623 P.2d 1221 (Alaska 1981).

Spouse’s continuing economic dependence alone does not indicate the continuance of the marital economic unit for purposes of determining whether property accumulated with income earned after a final separation that is intended to, and does in fact, lead to a divorce is excluded from the category of marital property. Ramsey v. Ramsey, 834 P.2d 807 (Alaska 1992).

Credit card debt incurred after separation. —

The trial court erred in classifying credit card debt incurred by the wife after separation as a marital debt. Dodson v. Dodson, 955 P.2d 902 (Alaska 1998).

Payments made to preserve marital property. —

The fact that one party has made payments from non-marital income to preserve marital property should be considered as one of the circumstances to be weighed by the trial court in dividing the marital property; however, there is no absolute rule that the spouse who makes such payments must be credited for them in the final property division. Edelman v. Edelman, 3 P.3d 348 (Alaska 2000).

Court did not err by failing to give a husband credit for post-separation payments made to preserve marital assets because there was evidence that the parties continued to live as a marital unit until the date of the divorce decree. Hansen v. Hansen, 119 P.3d 1005 (Alaska 2005).

Maintenance of marital property from post-separation income. —

The spouse who makes payments to maintain marital property from post-separation income need not necessarily be given credit for them in the final property division. The fact that one party has made payment from non-marital income to preserve marital property should be considered as one of the circumstances to be weighed by the trial court in dividing the marital property. Ramsey v. Ramsey, 834 P.2d 807 (Alaska 1992).

A court may properly consider post-separation payments made from separate income to preserve marital property and has the discretion to give the paying party credit for these payments. Nicholson v. Wolfe, 974 P.2d 417 (Alaska 1999).

Insufficient evidence of unreasonable depletion. —

Superior court was entitled to determine there was insufficient evidence of unreasonable depletion; wife leaving town, with no one else being reasonably able to manage the bed and breakfast (B&B), occurred when the marriage was breaking down, but the record lacked any evidence that the wife either used the B&B for her own benefit or derived any tangible, personal benefit by leaving it unattended. Jordan v. Jordan, 480 P.3d 626 (Alaska 2021).

Valuation of property using active appreciation analysis. —

Determination that the husband’s business was transmuted to marital property was not supported by the record. Findings that the business was started before the cohabitation and marriage, that it grew during the marriage, and that the growth was due to the husband’s efforts at the business and to the wife’s efforts at home, appeared to fit an active appreciation analysis that would entitle the wife to an interest in the increase in the value of the business, rather than its entire value. Hughes v. Hughes, — P.3d — (Alaska May 1, 2013) (memorandum decision).

Credit for improvements to marital home. —

Where trial court had evidence that improvements could maintain or increase the existing value of a house, it was not clear error for the court to award a 20 percent credit for spouse’s expenses for improvements made to marital home after dissolution. Knutson v. Knutson, 973 P.2d 596 (Alaska 1999).

Award of family home to child's primary custodian held proper. —

Award of the family home to the wife was proper under subparagraph (a)(4)(F) of this section, in that the mother was awarded primary physical custody of the children and they had lived their entire lives in the home. Furthermore, the trial court awarded the husband the right of first refusal to purchase the home should the wife choose to sell it, or upon her death. Odom v. Odom, 141 P.3d 324 (Alaska 2006).

Superior court did not abuse its discretion by awarding the wife the marital home in a divorce because the court considered the parties' earning capacities, the parties' financial conditions, and the desirability of awarding the family home to the party who had primary physical custody of the children. The court believed that any potential benefit from selling the home was outweighed by the likely disruption of relocating the children, that the husband was unable to pay the monthly mortgage, and that the wife was able to pay the mortgage. Johnson v. Johnson, — P.3d — (Alaska July 22, 2020).

Finding of earning capacity. —

Trial court properly found that divorcing wife’s earning capacity was unlikely to be over $25,000 per year, and was not required to extrapolate from 2019 earnings that she could earn more or translate her seasonal job into more, and 63/37 marital property split was proper based on husband’s much higher earning capacity. Miller v. Miller, — P.3d — (Alaska May 11, 2022) (memorandum decision).

Conveyance of marital property in anticipation of divorce. —

Husband’s secret conveyance of his interest in a bar to his brother three days after receiving service of divorce papers was intended to defraud the wife of her fair share of a primary marital asset. Pattee v. Pattee, 744 P.2d 658 (Alaska 1987), overruled, Nass v. Seaton, 904 P.2d 412 (Alaska 1995); Gabaig v. Gabaig, 717 P.2d 835 (Alaska 1986).

Retirement plan. —

The court properly credited the husband with the actuarial present value of his retirement plan, notwithstanding that it included survivor benefits payable to “spousal dependents,” including his ex-wife, upon his untimely death. Broadribb v. Broadribb, 956 P.2d 1222 (Alaska 1998).

In a dissolution of marriage case, the court erred in its characterization of the husband’s IRA as separate property where, to the extent that a party earned retirement benefits during marriage, the benefits were marital assets and were subject to equitable division. Schmitz v. Schmitz, 88 P.3d 1116 (Alaska 2004).

Court erred by classifying the husband’s individual retirement account (IRA) as marital property where there was no evidence that all of the funds deposited in the IRA were marital, there was no evidence of transmutation, and although $3,500 of marital property was used to fund the IRA, it was an abuse of discretion to treat the entire account as marital. Hansen v. Hansen, 119 P.3d 1005 (Alaska 2005).

Division of nonvested pension rights. —

Because a nonvested pension may, by definition, be forfeited in its entirety, it should not be considered when the trial court makes an initial property division at the time of a divorce. If and when the employee spouse’s pension rights vest, and if the parties are unable to reach an agreement on their own, the non-employee spouse may at any time thereafter seek an order dividing the pension. This is to be done in the same manner as if the pension had been vested at the time of the divorce. Laing v. Laing, 741 P.2d 649 (Alaska 1987) (decided prior to 1990 amendment specifically providing for division of retirement benefits).

The trial court erred in awarding husband his nonvested retirement benefits at the time of divorce. Root v. Root, 851 P.2d 67 (Alaska 1993).

Division of vested pension. —

The proper division of a vested pension can be accomplished in either of two ways. The court can either award a lump sum discounted to present value to one party or both, or retain jurisdiction and have payments made to the parties as retirement benefits come due. Hartland v. Hartland, 777 P.2d 636 (Alaska 1989).

Nonretirement option for employee spouse. —

An employee spouse should have the option of not retiring and periodically paying the non-employee spouse sums equal to the pension benefits that otherwise would have been received. Morlan v. Morlan, 720 P.2d 497 (Alaska 1986).

Discounting 401k plan by projected tax liability. —

The trial court did not abuse its discretion in discounting by a projected tax liability the husband’s 401k plan that was awarded to the wife. Dodson v. Dodson, 955 P.2d 902 (Alaska 1998).

Award of military retirement. —

Trial court did not err in denying the wife’s motions for reconsideration of her share of her former husband’s military retirement because the trial court’s award of 35 percent was consistent with the requirements of the Uniformed Services Former Spouses’ Protection Act and was not unjust under Alaska law. Williams v. Williams, 252 P.3d 998 (Alaska 2011).

Wife’s action for post-judgment division of property was not barred by the statute of limitations because she filed a motion to further adjudicate an already existing action, consistent with this section, which allows post-decree divisions of property any time after judgment. Schaub v. Schaub, 305 P.3d 337 (Alaska 2013).

Military disability benefits. —

Superior court erred in awarding the wife the equivalent of half of a putative marital portion of the husband's VA disability benefits; while an unequal distribution based upon the husband's expected future working income compared to the wife's was justified, by directly offsetting nondivisible disability pay to the dollar and to the penny, the figure was clearly applied as a dollar for dollar distribution prohibited by case law. Jordan v. Jordan, 480 P.3d 626 (Alaska 2021).

Waiver of military retirement pay in order to collect disability benefits. —

Since the waiver of former husband’s military retirement pay in order to collect disability benefits clearly affected the relative financial positions of the parties, former wife was entitled to a redistribution of the marital estate under these new circumstances. Clauson v. Clauson, 831 P.2d 1257 (Alaska 1992).

Where former husband waived his military retirement benefits in order to collect disability benefits, and where the trial judge simply ordered him to pay an amount equivalent to former wife’s share of the waived retirement pension as if the waiver had never occurred, the effect of the modification order was to award her a portion of former husband’s disability benefits, and the order, therefore, ran afoul of the supremacy clause of the federal constitution. Clauson v. Clauson, 831 P.2d 1257 (Alaska 1992).

Stock options. —

The court was not required to consider tax consequences in its valuation of stock options belonging to the husband that were marital assets. Broadribb v. Broadribb, 956 P.2d 1222 (Alaska 1998).

Health insurance benefits. —

In a property division following divorce where the wife was a state employee, the trial court correctly held the wife’s lifetime health insurance benefits that vested before the marriage were her separate property. The trial court did not err in applying the factors listed in this section in its consideration of the husband’s health problems and the costs of him obtaining insurance; because he was awarded a coverture portion of his wife’s Public Employee Retirement System account, he was entitled to obtain health insurance coverage under AS 39.35.535(d) . Sparks v. Sparks, 233 P.3d 1091 (Alaska 2010), overruled in part, Engstrom v. Engstrom, 350 P.3d 766 (Alaska 2015).

Because a husband and wife both had similar economic potential and both faced health conditions that would likely require private medical spending, determination that the health insurance issue did not require a departure from the presumptively valid equal division of marital assets was not an abuse of discretion. McCormick v. McCormick, — P.3d — (Alaska Sept. 16, 2015) (memorandum decision).

Disposal of spouse's health insurance. —

Husband’s unilateral removal of his wife from his health insurance policy before entry of the divorce decree constituted dissipation of a marital asset in violation of the trial court’s standing order. Thus, trial court’s order that husband either reinstate wife’s coverage or pay her medical bill incurred both before and after the decree was entered was within its broad discretion. Kinnard v. Kinnard, 43 P.3d 150 (Alaska 2002).

Court erred by finding that wife’s post-retirement health benefits were nonmarital property because, by using marital funds during the marriage, the wife reacquired the post-retirement health insurance benefits she earned before the marriage; the benefit was, therefore, at least in part a marital asset. Hansen v. Hansen, 119 P.3d 1005 (Alaska 2005).

Set net fishing permit separate property. —

Although the proceeds from the couple’s joint fishing enterprise were marital, having consistently been shared by the parties during their marriage, the record did not show that the wife ever took any action to maintain, manage, or control the fishing permit itself; therefore, the superior court’s finding that the set net permit was husband’s separate property and not part of the marital estate was not clearly erroneous. Edelman v. Edelman, 3 P.3d 348 (Alaska 2000).

Presumption of debt as marital. —

Absent a showing that the parties intended the debt to be separate, the trial court must presume that a debt incurred during the marriage is marital and should consider it when dividing the marital estate; therefore, where the loan was evidenced by a promissory note signed by both parties, even though the loan came from the wife’s parents and a portion of the loan money was placed in the wife’s retirement account, this did not overcome the marital presumption. Leis v. Hustad, 22 P.3d 885 (Alaska 2001).

Court did not err in its division of marital property and debt where the wife’s student loan was obtained during the marriage; it was proper for the trial court to award the wife approximately $3,352 more than a fifty percent share of the marital property, based on her circumstances as an unemployed graduate student, despite her full-time earning capacity. Veselsky v. Veselsky, 113 P.3d 629 (Alaska 2005).

Equal allocation of marital debt. —

Superior court did not abuse its discretion in equally allocating responsibility for the marital debt; the husband bore the burden of proving that the wife wasted marital assets by gambling, and the superior court found that the wife's testimony about how the money was used was more credible, especially in light of the parties' tax returns and receipt of public assistance. Wagner v. Wagner, 386 P.3d 1249 (Alaska 2017).

Wife did not overcome the presumption that the entire debt on the credit card account was marital, and it was clear error to hold otherwise because the husband's daughter testified that she gave the dog to the husband and wife as a gift; the debt for the dog's veterinary care was incurred during the marriage; and the wife did not provide any trial evidence showing that the parties intended the debt to be separate. Aubert v. Wilson, 483 P.3d 179 (Alaska 2021).

Payment by wife held not clearly repayment of valid marital debt. —

Trial court did not err in failing to grant sufficient weight to the wife’s payment of roughly $240,000 to her parents to repay a loan because the wife had not established by a preponderance of the evidence that those payments created any legal obligation of repayment; accordingly, it concluded that no adjustment was required based on the payments. Fortson v. Fortson, 131 P.3d 451 (Alaska 2006).

Effect of debt in determining value. —

Generally, the debt owed on any particular item of property will factor into the trial court’s determination of its value. Mack v. Mack, 816 P.2d 197 (Alaska 1991).

Trial court did not clearly err by assigning a value of zero to business realty for the purposes of a marital property division where nonrecourse languge in the contract for purchase of the property left the wife free to default on the realty debt without liability. Mack v. Mack, 816 P.2d 197 (Alaska 1991).

Factors in (a)(4) properly considered. —

A property division must fairly allocate the economic effects of divorce by considering the factors set out in Merrill v. Merrill, 368 P.2d 546 (Alaska 1962), as codified at paragraph (a)(4), and the court properly considered those factors, particularly the factor of the station in life of the parties during the marriage, as well as the age and health of the parties. Sloane v. Sloane, 18 P.3d 60 (Alaska 2001).

Regarding property division in a marital dissolution, appellate court found no abuse of trial court’s discretion in evaluating the property division factors in paragraph (a)(4); wife’s actual income, not her potential income, was properly considered because of her obligations to the children. Tillmon v. Tillmon, 189 P.3d 1022 (Alaska 2008).

Factors set out in paragraph (a)(4) were properly considered by the court, showing the factual basis for its decision to divide property equally; the court considered the length of the marriage, the husband’s receipt of disability benefits, the wife’s modest earning capacity, and the husband’s anticipated inheritance. Stanhope v. Stanhope, 305 P.3d 1282 (Alaska 2013).

Superior court’s equal division of the marital estate was not an abuse of discretion because the order identified the factors set forth in the statute as the basis for dividing marital property, and the court’s explanation of its decision to divide the marital estate evenly touched on all of the required factors. McCormick v. McCormick, — P.3d — (Alaska Sept. 16, 2015) (memorandum decision).

The distribution of the marital estate was equitable even though the court assigned whole, discrete debt accounts to one party or the other; the wife failed to engage or weigh any statutory factors permitting an uneven allocation, and, while the parties arguably benefitted from the wife's education during the marriage, only the wife would directly benefit thereafter. Melillo v. Szymanski, — P.3d — (Alaska Aug. 10, 2016) (memorandum decision).

The principal factors that should be considered by the trial court in resolving property division and alimony issues are: The respective ages of the parties; their earning ability; the duration and conduct of each during the marriage; their station in life; the circumstances and necessities of each; their health and physical condition; their financial circumstances, including the time and manner of acquisition of the property in question, its value at the time and its income producing capacity if any. Groff v. Groff, 408 P.2d 998 (Alaska 1965); Stroecker v. Stroecker, 428 P.2d 384 (Alaska 1967); Sheridan v. Sheridan, 466 P.2d 821 (Alaska 1970); Vanover v. Vanover, 496 P.2d 644 (Alaska 1972); Burrell v. Burrell, 537 P.2d 1 (Alaska 1975); Courtney v. Courtney, 542 P.2d 164 (Alaska 1975); Schoning v. Schoning, 550 P.2d 373 (Alaska 1976); Hager v. Hager, 553 P.2d 919 (Alaska 1976); Faro v. Faro, 579 P.2d 1377 (Alaska 1978); Hinchey v. Hinchey, 625 P.2d 297 (Alaska 1981), overruled, Dowling v. Dowling, 679 P.2d 480 (Alaska 1984).

In determining whether separate property acquired before marriage should be invaded, the court should particularly consider factors such as the duration of the marriage, the conduct of the parties during the marriage, the manner of acquisition of the property, its value at the time of acquisition and at the time of the property division, and any other factors bearing on whether the equities dictate that the other spouse is entitled to share in that property. Vanover v. Vanover, 496 P.2d 644 (Alaska 1972); Burrell v. Burrell, 537 P.2d 1 (Alaska 1975).

Courts making property divisions should consider each spouse’s relative contributions to the marriage, whether of a pecuniary or of a more intangible nature. Bussell v. Bussell, 623 P.2d 1221 (Alaska 1981).

Consideration of tax consequences. —

The superior court shall consider the immediate and specific tax consequences of its division of property. However, it is the parties’ responsibility to advocate how they believe the tax code and regulations apply to the disposition of property so the court can make a reasoned decision. Oberhansly v. Oberhansly, 798 P.2d 883 (Alaska 1990).

The court did not err in ignoring a verbal stipulation by the parties that the husband would accept payment of the second deed of trust on the family home in exchange for receipt of two notes owing to the couple, where the language targeted by the husband was one small portion of a general proposal by the wife’s counsel, this proposal was made in response to the court’s request for argument by each counsel on suggested property divisions based on need and utilization, and the comments were indefinitely phrased at best and were couched in terms of one suggestion among many put forth by counsel. Rostel v. Rostel, 622 P.2d 429 (Alaska 1981), overruled, Moffitt v. Moffitt, 749 P.2d 343 (Alaska 1988).

Personal jurisdiction. —

Order dividing property was void because the court that issued the order did so without having personal jurisdiction over the wife; and the state supreme court affirmed the trial court’s judgment vacating the order even though it was 17 years old, and also affirmed the trial court’s subsequent judgment awarding the wife half of the marital portion of her ex-husband’s pension, but only from the date she filed an action seeking an interest in the pension, not from the date the husband began receiving it. Inman v. Inman, 67 P.3d 655 (Alaska 2003).

Discretion of court. —

The trial court has broad discretion in property division cases. Doyle v. Doyle, 815 P.2d 366 (Alaska 1991); Mack v. Mack, 816 P.2d 197 (Alaska 1991).

The trial court has broad discretion in fashioning an equitable property distribution. Nicholson v. Wolfe, 974 P.2d 417 (Alaska 1999).

Standards regarding trial court's discretion. —

The standards regarding the trial court’s discretion articulated in Crume v. Crume, 378 P.2d 183 (Alaska 1963) are applicable both to the trial court’s exercise of its discretion in deciding whether or not the balancing of the equities between the parties requires invasion of the separate property of a spouse acquired prior to coverture and to the trial court’s decision in making the actual property division. Vanover v. Vanover, 496 P.2d 644 (Alaska 1972).

The enumeration of factors in subsection (a) is not exhaustive, and the trial court need not make findings pertaining to each factor, but its findings must be sufficient to indicate the factual basis for the conclusion reached. Nicholson v. Wolfe, 974 P.2d 417 (Alaska 1999).

The trial court’s discretion to invade property of a spouse acquired prior to coverture will not be disturbed absent a clear abuse of discretion. Moore v. Moore, 499 P.2d 300 (Alaska 1972).

Court's disposition should not be disturbed unless unjust. —

Under the wording of this section, the division of property between the parties in a divorce action rests in the discretion of the trial judge, and should not be disturbed on appeal unless such division is clearly unjust. Merrill v. Merrill, 368 P.2d 546 (Alaska 1962); Ross v. Ross, 496 P.2d 662 (Alaska 1972); Vanover v. Vanover, 496 P.2d 644 (Alaska 1972); Burrell v. Burrell, 537 P.2d 1 (Alaska 1975); Schoning v. Schoning, 550 P.2d 373 (Alaska 1976); Burks v. Burks, 564 P.2d 71 (Alaska 1977); Malone v. Malone, 587 P.2d 1167 (Alaska 1978); Bussell v. Bussell, 623 P.2d 1221 (Alaska 1981); Hinchey v. Hinchey, 625 P.2d 297 (Alaska 1981), overruled, Dowling v. Dowling, 679 P.2d 480 (Alaska 1984).

Trial court’s valuation of a commercial fishing boat at $195,000 was not clearly erroneous where the husband presented substantial evidence on the point; the husband was personally familiar with the vessel, his expert was knowledgeable about the overall market for such vessels, and both reached a similar conclusion, and the husband had notice about the need to present valuation evidence. Fortson v. Fortson, 131 P.3d 451 (Alaska 2006).

The division of property is left to the broad discretion of the court, and the supreme court will not reverse except upon a showing of abuse of discretion. Rhodes v. Rhodes, 370 P.2d 902 (Alaska 1962); Crume v. Crume, 378 P.2d 183 (Alaska 1963); McSmith v. McSmith, 387 P.2d 454 (Alaska 1963); Groff v. Groff, 408 P.2d 998 (Alaska 1965); Stroecker v. Stroecker, 428 P.2d 384 (Alaska 1967); Sheridan v. Sheridan, 466 P.2d 821 (Alaska 1970); Ross v. Ross, 496 P.2d 662 (Alaska 1972); Hurn v. Hurn, 541 P.2d 360 (Alaska 1975); Courtney v. Courtney, 542 P.2d 164 (Alaska 1975); Allen v. Allen, 554 P.2d 393 (Alaska 1976); Malone v. Malone, 587 P.2d 1167 (Alaska 1978).

Trial court has broad discretion in determining a just disposition of property based upon the facts in the particular case before it, and its determination will be reversed only where it is clearly unjust. Rose v. Rose, 755 P.2d 1121 (Alaska 1988).

The supreme court will disturb the trial court’s valuation of marital property only if it is clearly unjust. Hartland v. Hartland, 777 P.2d 636 (Alaska 1989).

The superior court has broad latitude in making its property division, and the supreme court will not disturb a property division absent a showing of abuse of discretion, i.e., clear injustice. Whether the trial court applied the appropriate legal standard in exercising its broad discretion is a question of law. Bays v. Bays, 807 P.2d 482 (Alaska 1991).

Abuse of discretion. —

Superior court abused its discretion in awarding the wife an additional $175,000 from the marital estate based on asserted differences in the parties' future earning capacities; while the superior court did not fail to consider the husband's intent to retire or the wife's financial needs and was not required to reduce its award to present value, remand was required for the superior court to adjust its calculations to account for the 10-month difference in the husband's remaining working career and to consider the tax consequences. Jordan v. Jordan, 480 P.3d 626 (Alaska 2021).

Trial court should indicate ultimate facts found as basis for division. —

When called upon to review the justness of the division of property in a divorce action, the supreme court needs to be informed by the trial court what it found to be the ultimate facts upon which it based its conclusion that the property should be divided as it has decreed. Merrill v. Merrill, 368 P.2d 546 (Alaska 1962).

Trial court’s failure to properly consider wife’s health problems, manner of crediting wife’s use of marital assets post-separation, and its failure to set out the basis for its decision to divide the property equally by citing factors required to be considered in making property division awards did not meet the requirements of this section. Day v. Williams, 285 P.3d 256 (Alaska 2012).

Absence of findings warranted remand. —

Award of almost 60 percent of the marital estate to the wife in the parties’ divorce action was inappropriate based upon lack of findings to support the unequal property division; thus, remand was proper for the superior court to consider the factors in Merrill v. Merrill, 368 P.2d 546 (Alaska 1962) codified in this section. Walker v. Walker, 151 P.3d 444 (Alaska 2007).

Without findings sufficient to indicate a factual basis for the conclusion the trial court reached, it was impossible for the court to evaluate whether the trial court properly applied case law dealing with property division in a marriage of short duration. Pfeil v. Lock, 311 P.3d 649 (Alaska 2013).

Remand required for specific findings. —

Because the property division was vacated on the ground that a fishing vessel should not have been treated differently than the other marital assets, the value of the equalization payment would necessarily change on remand. Thompson v. Thompson, 454 P.3d 981 (Alaska 2019).

Findings of fact. —

Based on a consideration of its findings regarding the parties' individual needs, the superior court awarded the wife a greater portion of the marital estate. Because these findings were not clearly erroneous, the superior court did not abuse its discretion. Downs v. Downs, 440 P.3d 294 (Alaska 2019).

Superior court’s decision to use the date of trial for division of the husband’s pension was not an abuse of discretion, where the husband considered the entire pension accrued during the parties’ cohabitation and marriage to be part of the marital estate and never differentiated the pension contributions he made before the parties’ marriage or those made after the parties’ separation. Bays v. Bays, 807 P.2d 482 (Alaska 1991).

Discretion not abused in disposition of down payment. —

Trial court properly applied its discretion when it determined that the husband’s down payment on a Florida condominium remained a premarital asset and excluded it from the marital equity in the condominium. Miles v. Miles, 816 P.2d 129 (Alaska 1991).

Prejudgment interest. —

Given the highly discretionary nature of property division cases, the trial court may award prejudgment interest in divorce proceedings; it is not required, however, and interest should not be awarded where it “would do an injustice.” Morris v. Morris, 724 P.2d 527 (Alaska 1986).

Trial court did not abuse its discretion in giving wife six months interest-free time in which to liquidate the equity in a house to provide funds to satisfy husband’s judgment. Dixon v. Dixon, 747 P.2d 1169 (Alaska 1987).

Abuse of discretion. —

Failure to award the wife any portion of her husband’s interest in California property constituted an abuse of discretion. In light of the wife’s age, existing and future health problems, her limited earning capacity, the 25 years duration of the marriage, and the fact that a substantial amount of the properties awarded to her were purchased with her separate inheritance funds, a just division of the property of the parties required invasion of the husband’s separate property, i.e., his California property, and the award of some portion of the husband’s interest in this property to his wife. Burrell v. Burrell, 537 P.2d 1 (Alaska 1975).

In a divorce action, a trial court erred under this section when it distributed to the wife 60 percent of the parties’ marital property because, although the husband was healthier and had greater earning capacity than the wife, whose injuries would probably require more medical care and limit her future employment options, it was error to find that the refinancing of the house was a source of financial detriment when the proceeds paid marital debts and the trial court did not consider the rental value of an apartment contained within the house. Additionally, finding a vehicle had a negative value, when in fact nothing was owed on it at the time that it was traded in, was error, as was deducting that value from the wife’s vehicle account, but the marital funds the wife retained at the time of separation were later reasonably expended by the wife to support herself and her children, and the wife’s anticipated receipt of child support arrearages did not amount to a double recovery. Heustess v. Kelley-Heustess, 158 P.3d 827 (Alaska 2007).

Trial court abused its discretion in dividing the marital estate 50/50 because the husband's income was substantially less than the wife's income, the wife was 10 years younger, in better health, had better earning capacity, and had better health and retirement benefits, and the post-division equalization did not justify an equal division of the parties' estate. Fletcher v. Fletcher, 433 P.3d 1148 (Alaska 2018).

Division must be clearly unjust to establish abuse of discretion. —

To establish an abuse of discretion the aggrieved party must show that the property division was clearly unjust. Crume v. Crume, 378 P.2d 183 (Alaska 1963); McSmith v. McSmith, 387 P.2d 454 (Alaska 1963); Groff v. Groff, 408 P.2d 998 (Alaska 1965); Sheridan v. Sheridan, 466 P.2d 821 (Alaska 1970); Vanover v. Vanover, 496 P.2d 644 (Alaska 1972); Burrell v. Burrell, 537 P.2d 1 (Alaska 1975); Hurn v. Hurn, 541 P.2d 360 (Alaska 1975); Courtney v. Courtney, 542 P.2d 164 (Alaska 1975); Allen v. Allen, 554 P.2d 393 (Alaska 1976); Malone v. Malone, 587 P.2d 1167 (Alaska 1978).

Superior court did not clearly abuse its discretion by awarding the wife a larger share of the marital estate, but because the Alaska supreme court could not determine whether the husband’s vexatious litigation conduct was double-counted, the judgment was remanded for additional findings. Heustess v. Kelley-Heustess, 259 P.3d 462 (Alaska 2011).

The mere possibility of future dispute is not sufficient reason to disturb the superior court’s exercise of its discretion. Allen v. Allen, 554 P.2d 393 (Alaska 1976).

This section does not equate a “just” division of property with an equal division in all cases. Hurn v. Hurn, 541 P.2d 360 (Alaska 1975).

The requirement that the property division be an equitable one does not require a perfectly even division. Rostel v. Rostel, 622 P.2d 429 (Alaska 1981), overruled, Moffitt v. Moffitt, 749 P.2d 343 (Alaska 1988).

No affirmative duty to examine every property settlement by parties. —

Although this section grants broad authority to a trial court to fashion property settlements absent an agreement, it does not impose an affirmative duty on a trial court to examine every property settlement reached by the parties to determine if it is just. Kerslake v. Kerslake, 609 P.2d 559 (Alaska 1980).

Allocation of different types of assets. —

Trial court’s allocation of marital assets was not an abuse of discretion where the husband waived his argument challenging the valuation of one of the properties. Awarding the wife the sole income-producing asset was proper where the husband was awarded the vast majority of the marital estate’s liquid assets, and the trial court clearly had considered the husband’s separate property contributions. Partridge v. Partridge, 239 P.3d 680 (Alaska 2010).

Property division not clearly unjust. —

Where the couple lived together for several years before participating in a marriage ceremony in Mexico, and during that time acquired property in the husband’s name by homestead, that the marriage was invalid did not negate the trial court’s authority to award the putative wife a portion of the value of the homestead. Hager v. Hager, 553 P.2d 919 (Alaska 1976); Hinchey v. Hinchey, 625 P.2d 297 (Alaska 1981), overruled, Dowling v. Dowling, 679 P.2d 480 (Alaska 1984); Smith v. Smith, 673 P.2d 282 (Alaska 1983).

Where a party to a divorce is claiming that the trial judge abused his discretion in dividing marital property by imposing a financial burden that is “clearly unjust,” the party must demonstrate such injustice to cause the supreme court to reverse the trial court’s decision, but where the party is in a position to alleviate his monthly payments by refinancing or liquidating assets, or by trading down to a less expensive automobile, and since it is not unreasonable to expect a party to a divorce to have to reorganize financially, at least on a short term basis, the result may be harsh, but as between the parties it is not clearly unjust. Monsma v. Monsma, 618 P.2d 559 (Alaska 1980).

Superior court’s unequal division of property was not clearly unjust where the court properly considered the husband’s fault in allowing most of the household debts to fall in default and in paying personal debts out of marital assets, and the husband had unfairly appropriated marital property after separation. Oberhansly v. Oberhansly, 798 P.2d 883 (Alaska 1990).

Trial court did not err in finding that residential properties were the husband’s separate property, where the evidence did not establish intent to hold the properties jointly, the wife did not contribute to mortgage payments or reside on the properties, and she did not assume any financial risk or work extensively to maintain or manage them. Miles v. Miles, 816 P.2d 129 (Alaska 1991).

Trial court’s justification for the unequal division of property was the wife’s need to secure additional retirement and health benefits or equivalent financial security, and the order adequately explained the factual basis for the property division; because the court may properly consider each party’s financial condition, it did not err in considering the husband’s disability pay, and awarding the wife a greater share of money originally intended to compensate her for the loss of her sons was not clearly unjust. Young v. Lowery, 221 P.3d 1006 (Alaska 2009).

Property division not inconsistent with default judgment. —

Where the court entered a default judgment of divorce that included a provision that the parties divide their property equally, but made no item-by-item disposition, it was not error to subsequently, on motion of the defaulting party, enter an order specifically assigning items of property to each spouse. Hines v. Hines, 622 P.2d 982 (Alaska 1981).

Property award upheld. —

Where the wife made a substantially greater contribution to the marriage and the acquisition of property, the court did not err in awarding her the equity in an apartment building and a house. Cooke v. Cooke, 625 P.2d 291 (Alaska 1981).

Trial court considered whether costs related to financing a large lump sum payment to the husband would impose an undue hardship on the wife where the court considered the wife’s health and granted her the right to alter the payment schedule if she could not comply due to changes in her health or employment. Fortson v. Fortson, 131 P.3d 451 (Alaska 2006).

Property division upheld. —

Where the trial court made extensive findings on the parties’ relative economic status and the economic effects of the divorce, it was not an abuse of discretion for the court to determine that a 50/50 split in property was equitable. Carstens v. Carstens, 867 P.2d 805 (Alaska 1994).

Trial court did not err by awarding the wife 67 percent of marital estate because it entered thoughtful and detailed findings of fact discussing the factors set out in paragraph (a)(4) and the reasons for deviation from the 50/50 norm for property division were sufficient; trial court’s findings discussed the parties’ significant income disparity and the wife’s need to keep the family home for the parties’ children, and court rejected the husband’s contention that the wife had unilaterally chosen not to return to full-time employment and found that she had no financial reserves after the husband failed to make mortgage payments on the marital home. Hooper v. Hooper, 188 P.3d 681 (Alaska 2008).

Court did not err when it divided the parties’ property equally because the court noted that both parties were gainfully employed, both parties had excellent benefits available to them through their employers, both parties were in reasonably good health, the wife was six years younger than the husband and therefore had a longer work expectancy, and both parties were leaving the marriage with significant assets and very little consumer debt. Helen S. K. v. Samuel M. K., 288 P.3d 463 (Alaska 2012).

Under a clear error standard, the supreme court deferred to the superior court's ruling that the date a wife filed her complaint for divorce was automatically the date of separation; the superior court found that the wife's car and her deposit were property acquired after the date of separation. Jackson v. Sey, — P.3d — (Alaska June 15, 2016) (memorandum decision).

Superior court did not abuse its discretion in failing to consider the wife's alleged misconduct in its equitable division of the marital estate where the husband did not offer any evidence of the alleged misconduct and did not attempt to quantify its financial impact, and the only support in the record for the husband's claims were the bare assertions in his own testimony. Greene v. Greene, — P.3d — (Alaska Oct. 24, 2018).

Property division and valuation affirmed. —

Where husband refused to follow a court order to dissolve a family trust into which he had moved his assets, and where the court awarded the wife a one-third interest in the property, the court did not err in valuing the property at the highest figure supported by the testimony. Gabaig v. Gabaig, 717 P.2d 835 (Alaska 1986); Zimin v. Zimin, 837 P.2d 118 (Alaska 1992).

Unequal property division upheld. —

There was no error where the trial court discussed each applicable statutory factor and stated that it based its decision to distribute the marital assets unequally primarily on the parties’ unequal earning power, stations in life, and conduct during the marriage, specifically focusing on its factual finding that the wife’s earning power was less than half of the husband’s. Tybus v. Holland, 990 P.2d 1281 (Alaska 1999).

Where a husband had a reasonable earning capacity and had received a portion of the marital estate large enough to help him make the transition into post-marital life, while the wife faced substantial future health care costs and other challenges to her ability to earn an income, the 60/40 property division in favor of the wife was within the trial court’s discretion Fortson v. Fortson, 131 P.3d 451 (Alaska 2006).

Superior court did not abuse its discretion in awarding a disproportionately high share of the marital estate to the wife in light of the husband's death as the husband's death could be properly considered as an element of the circumstances and necessities of each party; and the wife's relative financial needs were far greater because the husband was deceased. Aubert v. Wilson, 483 P.3d 179 (Alaska 2021).

Unequal division not justified. —

An equitable property division is presumptively fifty-fifty, absent any statutory or equitable factors justifying a different division, and the factors discussed in sub-paragraphs (a)(4)(A)-(I) did not justify awarding the wife less than fifty percent of the marital wealth. McDougall v. Lumpkin, 11 P.3d 990 (Alaska 2000).

In awarding the wife a larger share of the marital property the court double charged the husband by placing the value of the income-producing businesses as an asset in the property chart and to support an unequal division of property where all other factors were not equal. In the absence of findings about whether child support was inadequate to meet the child’s needs, an unequal property division that rested in part on the wife’s child-care responsibilities was error. Engstrom v. Engstrom, 350 P.3d 766 (Alaska 2015).

Property division clearly unjust. —

A property division that failed to mention various debts and some litigation settlement money, did not indicate consideration of the husband’s salary contribution to the marriage, and failed to mention several relevant factors, including the parties’ ages, their health, their financial circumstances, and their future needs, was clearly unjust. Burcell v. Burcell, 713 P.2d 802 (Alaska 1986).

Characterization of business as separate property. —

In a dissolution of marriage case, the court erred in its characterization of a business as separate property because the proof of the husband’s increased income that the wife was able to present suggested that the value of the business might have increased during the marriage. Schmitz v. Schmitz, 88 P.3d 1116 (Alaska 2004).

In a dissolution of marriage case, the court did not err in its characterization of a business as separate property where the record showed that the husband’s involvement with the store was quite limited; he only performed some accounting and tax returns for the store and attended its annual meeting. Therefore, the wife did not meet her burden of proof on the element of marital contribution for the business. Schmitz v. Schmitz, 88 P.3d 1116 (Alaska 2004).

Bank accounts as separate property. —

In a dissolution of marriage case, the court erred in its characterization of bank accounts as the husband’s separate property because the record suggested that the accounts consisted of both marital and separate property. Schmitz v. Schmitz, 88 P.3d 1116 (Alaska 2004).

Stock account as separate property. —

In a dissolution of marriage case, the court did not err in its characterization of a stock account as the husband’s separate property where the husband did not commingle funds and, to the extent that separate money was placed in joint accounts, the evidence was strong that it was only temporary and not to make it into joint property. Schmitz v. Schmitz, 88 P.3d 1116 (Alaska 2004).

Distribution just. —

Based on the statutory factors enumerated under this section, trial court’s allocation of marital property by way of one-third to husband and two-thirds to wife was not clearly unjust and should not be disturbed. Ulsher v. Ulsher, 867 P.2d 819 (Alaska 1994).

Separate property not transmuted into marital property. —

Because the superior court's transmutation finding was reversed, the court's orders granting the ex-wife half the proceeds of the sales of the individual fishing quotas (IFQs) could not stand because, without a valid transmutation finding or other basis for concluding that the IFQs were marital property, the IFQs were the ex-husband's separate property, and, as such, the IFQs and the proceeds from their sale were not subject to division. Brennan v. Brennan, 425 P.3d 99 (Alaska 2018).

In a divorce case, the superior court erred in determining that the individual fishing quotas (IFQs) had all been transmuted from separate property to marital property and were subject to division because the sale of separate property IFQs to fund the construction of a marital home titled in the wife's name was not relevant to determining whether the husband had the intent to convey the remaining IFQs to the marital estate; and the court did not appear to consider whether the wife's contribution to the fishing business specifically evidenced an intent on the husband's part to operate the business jointly and to convey to the marital unit either the IFQs or the corporation that held them. Brennan v. Brennan, 425 P.3d 99 (Alaska 2018).

Independent action not barred. —

A divorce decree silent as to property issues is not a bar to the maintenance of an independent action involving the parties’ property rights. Van Brocklin v. Van Brocklin, 635 P.2d 1186 (Alaska 1981).

Contempt proceedings may not be used to enforce decree based on property settlement. —

If the divorce decree is based upon a property settlement and not an alimony agreement, contempt proceedings may not be used to enforce the decree or to enforce any subsequent order that may be issued requiring the husband to make the payments specified in the property settlement agreement or in the decree itself. Goggans v. Osborn, 237 F.2d 186, 16 Alaska 451 (9th Cir. Alaska 1956).

Post-judgment piecemeal disposition. —

Subsection (a) provides the statutory authority for a court to adjudicate property rights. However, it does not authorize a court to dispose of assets on a piecemeal basis where the parties’ property rights have been purportedly adjudicated and incorporated into a final judgment. Lowe v. Lowe, 817 P.2d 453 (Alaska 1991).

Although subsection (a) allows a court to adjudicate property rights, it does not authorize a court to dispose of assets on a piecemeal basis where the parties’ property rights have been purportedly adjudicated and incorporated into a final judgment. Thus, relief may be granted only within the parameters of Alaska R. Civ. P. 60(b). Juelfs v. Gough, 41 P.3d 593 (Alaska 2002).

Remand for additional evidence to prevent miscarriage of justice. —

Where a miscarriage of justice seemed apparent, the supreme court concluded that portion of a decree dividing the property of the parties to a divorce action should be set aside and the case remanded with directions to the trial court to receive such additional competent evidence as either party might wish to present on the property division issue and then enter new findings of fact, conclusions of law, and judgment on the issue in question. Rhodes v. Rhodes, 370 P.2d 902 (Alaska 1962).

Remand for property disposition modification because of extraordinary circumstances. —

Where the parties intended, at the time of divorce, to continue living in the marital home with the parties’ children, a subsequent change in circumstances warranted the trial court’s grant of the wife’s motion under Civ. R. 60(b) to modify the property disposition provisions of the decree. Foster v. Foster, 684 P.2d 869 (Alaska 1984).

Remand required given ambiguous basis for property division. —

Where the court could not determine the factual basis for the superior court’s property division from its findings, the case was remanded for adequate findings on whether certain fishing equipment was marital or separate property. Rhodes v. Rhodes, 867 P.2d 802 (Alaska 1994).

Remand required for specific findings. —

Because the trial court did not explain its reasons for preferring spousal support over property distribution, failed to disclose the basis for the amount of spousal support it awarded, and made no specific findings determining the earning power and financial needs of the parties, it was not possible to determine whether the court abused its discretion, requiring remand for additional findings on those issues. Hanlon v. Hanlon, 871 P.2d 229 (Alaska 1994).

Where the trial court briefly discussed spouse’s lack of job skills and need for reorientation assistance, this provided adequate support for the decision itself to award reorientation alimony, but did not assist the court in reviewing the correctness of the amount or duration of alimony, requiring remand for specific findings to support the amount and duration of reorientation alimony. Gallant v. Gallant, 882 P.2d 1252 (Alaska 1994).

A factor listed in paragraph (a)(4) should be referred to by the trial court in dividing the property of the parties; thus, where it was a factor, on remand the court should consider the time and manner of acquisition of property by the husband. Bellanich v. Bellanich, 936 P.2d 141 (Alaska 1997).

The absence of fact findings on the issue of whether spouse was entitled to credit for repairs to marital home, made with non-marital assets, required remand for consideration of credit claim. Berry v. Berry, 978 P.2d 93 (Alaska 1999).

Error by trial court. —

The trial court erred in requiring the husband to pay promissory notes executed in connection with certain stock transfers to the husband and wife that were not consideration for the transfers. Dodson v. Dodson, 955 P.2d 902 (Alaska 1998).

Where the superior court expressly found that a wife was the economically disadvantaged party, the court’s failure to make provision for the costs of repairs and sale of the real property awarded to her defeated its stated goal of awarding her the greater share of the marital assets. Tollefsen v. Tollefsen, 981 P.2d 568 (Alaska 1999).

Unpaid student loans the wife accumulated while attending college, and incurred before separation, should have been treated as marital debt subject to division under subsection (a). McDougall v. Lumpkin, 11 P.3d 990 (Alaska 2000).

Superior court improperly separated a fishing vessel from the rest of the marital estate because it was a tangible asset acquired during the marriage and was, therefore, subject to division; the father did not demonstrate that the statutory factors favored him, and the mother contributed to the father's earning capacity by caring for the children and providing shore support while he fished, which could have helped make possible the purchase of the fishing vessel in the first place. Thompson v. Thompson, 454 P.3d 981 (Alaska 2019).

Attorney's fees. —

Where significant economic disparity exists between spouses, and the property division may not be effectuated for a significant period of time, relying solely on the property division to address attorney's fees unfairly burdens the spouse with lower earning capacity and fewer assets and thwarts the purposes of the exceptions; failure to consider the practical effect of neither awarding separate attorney's fees nor requiring a payment schedule for equalization payment is an abuse of discretion. Thompson v. Thompson, 454 P.3d 981 (Alaska 2019).

Because the superior court addressed attorney's fees through the property division, and because the supreme court vacated and remanded the property division, the superior court had to also reconsider attorney's fees on remand; the structure of the attorney's fees decision issued by the superior court left the mother, in practice, unable to litigate on an equal footing. Thompson v. Thompson, 454 P.3d 981 (Alaska 2019).

B.What Constitutes Property

Courtship expenses. —

It was error to include courtship expenses in a marital estate, absent specific findings explaining why the balancing of the equities required inclusion. Barnett v. Barnett, 238 P.3d 594 (Alaska 2010).

Impact of inheritance received by one spouse. —

For the purposes of equitable division, an inheritance received by one spouse during marriage is not property acquired during coverture within the meaning of paragraph (a)(4), but constitutes a nonmarital asset of the inheriting spouse. As such, an inheritance will not be subject to distribution unless a balancing of the equities requires it. Julsen v. Julsen, 741 P.2d 642 (Alaska 1987).

Jointly inherited property. —

Property inherited by spouses jointly constitutes marital property subject to division. Julsen v. Julsen, 741 P.2d 642 (Alaska 1987).

Inheritance held not marital property. —

Because husband made no promises to wife upon which she relied, and because the decision to cash in her retirement was made by her alone, the finding that husband intended to transmute his inheritance into marital property was clearly erroneous. Sampson v. Sampson, 14 P.3d 272 (Alaska 2000).

Equity accumulated during marriage. —

Equity in a marital asset that accumulates during a marriage is marital property. Thomas v. Thomas, 815 P.2d 374 (Alaska 1991).

Business goodwill. —

In determining value of business good will, if the trial court determines either that no good will exists or that the good will is unmarketable, then no value for good will should be considered in dividing the marital assets. Conversely, the good will should be considered if the evidence suggests that it has value and is marketable. Moffitt v. Moffitt, 749 P.2d 343 (Alaska 1988).

Choosing a compromise figure somewhere between figures suggested by husband and wife is not a valid method for valuing business good will for purposes of property division in a divorce proceeding. Moffitt v. Moffitt, 749 P.2d 343 (Alaska 1988).

Where uncontroverted evidence established that goodwill in the husband’s law practice could not be sold, he had no marketable professional goodwill in the practice, and the trial court therefore erred by including his professional goodwill in the marital estate. Richmond v. Richmond, 779 P.2d 1211 (Alaska 1989), overruled in part, Hansen v. Hansen, 119 P.3d 1005 (Alaska 2005).

Trial court’s implicit factual finding that there was a compensable interest for wife’s contribution to the goodwill in a hotel business operated by the spouses was clearly erroneous where, at the date of valuation, the hotel had been defunct for about three years and all the proceeds from its sale had been spent on living expenses. Gilboe v. Gilboe, 789 P.2d 343 (Alaska 1990).

Trial court did not abuse its discretion in finding, after hearing the testimony of an expert witness, that the husband’s lobbying practice possessed no goodwill value. Miles v. Miles, 816 P.2d 129 (Alaska 1991).

The income-earning capacity of a sole corporation is divisible property. Rostel v. Rostel, 622 P.2d 429 (Alaska 1981), overruled, Moffitt v. Moffitt, 749 P.2d 343 (Alaska 1988).

Bachelor's degree. —

Supporting the husband for two years at the outset of a 17-year marriage during which the wife worked and the husband went to school does not compel an unequal property division, as both have benefited from the increased earning capacity gained during those two years. Nelson v. Nelson, 736 P.2d 1145 (Alaska 1987).

Pensions generally. —

Despite the fact that retirement pensions, military or otherwise, are paid out on a monthly, prospective basis, pensions are property and decrees resolving rights to property are modifiable only to the extent that relief may be obtained from any other final judgment. Clauson v. Clauson, 831 P.2d 1257 (Alaska 1992).

Coverture fractions and retirement benefits. —

Coverture fraction is used to determine what part of a retirement benefit is marital property and what part is separate property, and it should not be used to discount the value of marital property or as a guideline for equitably dividing marital property. Gordon v. Gordon, 425 P.3d 142 (Alaska 2018).

Superior court should have characterized the retirement medical benefit as marital or separate in accordance with the actual coverture fraction, valued the benefit at its full value, and divided the marital estate, including the retirement medical benefit, between the parties according to the equitable factors; it was error for the superior court to apply the adjusted coverture fraction during the division stage, as it had no legitimate relation to the factors that the superior court considered. Gordon v. Gordon, 425 P.3d 142 (Alaska 2018).

Retirement benefits earned during marriage. —

To the extent retirement benefits have been earned during the marriage, they constitute marital assets and are subject to equitable division. Rice v. Rice, 757 P.2d 60 (Alaska 1988) (decided prior to 1990 amendment specifically providing for division of retirement benefits).

Nonvested retirement benefits. —

Trial court’s valuation of the wife’s nonvested retirement benefits at the amount of her contributions warranted a remand, where there was no finding that the pension would not vest nor was there any basis in the record upon which to determine whether the wife’s contributions would be refunded to her. Thomas v. Thomas, 815 P.2d 374 (Alaska 1991).

Retroactive application of retirement benefits amendment. —

The 1986 amendment to AS 39.35.500 , permitting retirement benefits to be assigned pursuant to a qualified domestic relations order, merely codified the means by which to distribute an asset and, as such, the amendment was procedural and could be applied retroactively. Rice v. Rice, 757 P.2d 60 (Alaska 1988) (decided prior to 1990 amendment specifically providing for division of retirement benefits).

Consideration of social security benefits permitted. —

While the court could not divide Social Security benefits, the parties' Social Security benefits could be considered in the division of their marital property as evidence of their financial condition and as one of the factors that was relevant to a fair allocation of the marital estate. Dunmore v. Dunmore, 420 P.3d 1187 (Alaska 2018).

Armed forces retired pay is not property which is divisible upon divorce, but is future income to the retiree. Cose v. Cose, 592 P.2d 1230 (Alaska 1979), cert. denied, 453 U.S. 922, 101 S. Ct. 3158, 69 L. Ed. 2d 1004 (U.S. 1981) (decided prior to 1990 amendment specifically providing for division of retirement benefits).

The federal supremacy clause, U.S. Const. art. VI, cl. 2, prohibits application of state property settlement concepts relating to divorce proceedings to military retirement benefits. Cose v. Cose, 592 P.2d 1230 (Alaska 1979), cert. denied, 453 U.S. 922, 101 S. Ct. 3158, 69 L. Ed. 2d 1004 (U.S. 1981) (decided prior to 1990 amendment specifically providing for division of retirement benefits).

Military pensions are divisible marital property upon dissolution of marriage. Doyle v. Doyle, 815 P.2d 366 (Alaska 1991).

Military disability benefits. —

In arriving at an equitable distribution of marital assets, courts should only consider a party’s military disability benefits as they affect the financial circumstances of both parties; disability benefits should not, either in form or substance, be treated as marital property subject to division upon the dissolution of marriage. Clauson v. Clauson, 831 P.2d 1257 (Alaska 1992).

Federal civil service retirement benefits. —

In contrast to military retirement and railroad retirement pay, Congress in 1978 specifically added a provision to the civil service retirement laws concerning retirement payments as marital property and, since there is no conflict between Alaska marital property rules and the federal statute (5 U.S.C. § 8345(j)(1)), there is no reason to overrule the superior court’s classification of the husband’s federal civil service retirement benefits as a marital asset. Monsma v. Monsma, 618 P.2d 559 (Alaska 1980) (decided prior to 1990 amendment specifically providing for division of retirement benefits).

Where a provision in a property settlement agreement elected survivorship benefits as a means of dividing the former husband’s civil service pension, but where the former wife remarried before age fifty-five and federal regulations therefore rendered enforcement of the agreement impossible, the superior court had no jurisdiction to enforce that provision, and the agreement was subject to modification. Williams v. Crawford, 982 P.2d 250 (Alaska 1999).

Employer's pension plan contributions. —

Awarding a non-employee spouse a percentage of an employee spouse’s contribution to a pension plan plus interest would ignore employer contributions which, to the extent they were made during the marriage, ought to be considered a marital asset. Laing v. Laing, 741 P.2d 649 (Alaska 1987) (decided prior to 1990 amendment specifically providing for division of retirement benefits).

Unused personal leave, which may be used or converted to cash by the person accruing it, is a marital asset for purposes of the court’s division of the parties’ property in an action for divorce. Schober v. Schober, 692 P.2d 267 (Alaska 1984).

Interest on contributions to thrift plan and retirement fund made subsequent to filing for divorce should be excluded in marital assets for purposes of dividing property. Schanck v. Schanck, 717 P.2d 1 (Alaska 1986) (decided prior to 1990 amendment specifically providing for division of retirement benefits).

State supplemental employee benefits in lieu of social security are marital property subject to equitable division at divorce. Mann v. Mann, 778 P.2d 590 (Alaska 1989).

Stock shares purchased by the husband with premarital funds were marital property, where the shares were held in both spouses’ names and represented the husband’s efforts to establish a corporation to which the wife had contributed significantly by co-signing a promissory note. Lewis v. Lewis, 785 P.2d 550 (Alaska 1990).

Contingent stock interest. —

In the case of a husband’s contingent stock interest, based on stock that had not been issued at the time of the divorce proceedings due to disputes over the interpretation of an employee agreement, that portion of the stock earned during the marriage constituted marital property. Lewis v. Lewis, 785 P.2d 550 (Alaska 1990).

Personal injury proceeds. —

Where a couple remained married but lived separately, divorced briefly and then remarried, proceeds related to compensation to husband for injuries suffered in a motorcycle accident prior to the separation were joint property. Husband did not meet his burden to provide evidence as to the date or financial circumstances surrounding the separation that would warrant treating some or all of the compensation as his separate property. Grace v. Peterson, 269 P.3d 663 (Alaska 2012).

Medical malpractice settlement. —

A medical malpractice settlement received prior to divorce and that includes an annuity providing for a monthly payment may be classified as marital property. However, for an equitable distribution, both spouses must prove by a preponderance of the evidence what amount or proportion of the annuity represents compensation for the loss of their separate property; i.e., compensation for the injured spouse’s post-divorce economic and noneconomic losses, on the one hand, and compensation for the other spouse’s loss of consortium, on the other hand. Bandow v. Bandow, 794 P.2d 1346 (Alaska 1990).

Fishing permit. —

Wife failed to prove that the husband's fishing permit, which was his separate premarital property, had transmuted into marital property, because both parties' testimony provided clear support for the court's finding that the wife was a crew member. Francesca S. v. Shawn K., — P.3d — (Alaska Sept. 8, 2021) (memorandum decision).

Individual fishing quota shares. —

Individual fishing quota shares are marital property even when the quota share program did not exist at the time the dissolution decree was entered; quota shares were based on the parties’ joint efforts during the marriage, and are thus analogous to income or assets received for activities during the marriage. McGee v. McGee, 974 P.2d 983 (Alaska 1999).

Collateral references. —

Community property system: status of property as separate, 20 Am. Jur. POF2d, pp. 321-370.

Abandonment of marriage without cause — defense in alimony, spousal support or separate maintenance proceedings, 27 Am. Jur. POF2d, pp. 737-776.

Validity of separation agreement as affected by provision for post-mortem payment or performance, 1 ALR2d 1178.

Provision for cessation or diminution of payments for wife’s support upon specified event, 4 ALR2d 732.

Restitution of property conveyed in consideration of previous reconciliation as condition of entertaining divorce action, 4 ALR2d 1210.

Granting relief not specifically demanded in pleading or notice in rendering default judgment in divorce or separation action, 12 ALR2d 340; 5 ALR5th 863.

Conflict of laws as to validity, effect, and construction of separation or property settlement agreements, 18 ALR2d 760.

Divorce decree as res judicata or estoppel as to previous marital status, against or in favor of third persons, 20 ALR2d 1163.

Valid foreign divorce granted upon constructive service as precluding action by spouse for alimony, support, or maintenance, 28 ALR2d 1378.

Allowance of permanent alimony to wife against whom divorce is granted, 34 ALR2d 313.

Reconciliation as affecting separation decree or agreement, 35 ALR2d 707; 36 ALR4th 502.

Death of husband as affecting alimony, 39 ALR2d 1406.

Alimony as affected by remarriage, 48 ALR2d 270; 45 ALR3d 1033.

Spouse’s right to take under other spouse’s will as affected by antenuptial or postnuptial agreement or property settlement, 53 ALR2d 475.

Right to allowance of permanent alimony in connection with decree of annulment, 54 ALR2d 1410.

Amount of compensation of attorney for services in annulment proceedings in absence of contract or statute fixing amount, 56 ALR2d 13; 57 ALR3d 475; 57 ALR3d 550; 57 ALR3d 584; 58 ALR3d 201; 58 ALR3d 235; 58 ALR3d 317; 59 ALR3d 152; 10 ALR5th 448; 17 ALR5th 366; 23 ALR5th 241; 86 ALR Fed. 866.

“Cooling off period” or lapse of time prior to entry of decree in divorce suit, 62 ALR2d 1262.

Court’s power as to support and maintenance of children in marriage annulment proceedings, 63 ALR2d 1029.

Construction and effect of clause in divorce decree providing for payment of former wife’s future medical expenses, 71 ALR2d 1236.

Property rights of spouses adjudicated in action for separate maintenance without divorce, 74 ALR2d 316.

Obligation under property settlement agreement between spouses as dischargeable in bankruptcy, 74 ALR2d 758.

Determination of property rights in wedding presents in action for annulment, 75 ALR2d 1365.

Construction and effect of provision in separation agreement that wife is to have portion of “income,” “total income,” “net income,” and the like, 79 ALR2d 609.

Decree in suit for “separation” as res judicata in subsequent suit for divorce or annulment, 90 ALR2d 745.

Divorce or separation decree as res judicata or estoppel, or as evidence, in alienation of affections or criminal conversation action, 96 ALR2d 903.

Propriety and effect of undivided award for support of more than one person, 2 ALR3d 596.

Provision or stipulation waiving wife’s right to counsel fees in event of divorce or separation action, 3 ALR3d 716.

Power of court to award absolute divorce in favor of party who desires only limited decree, or vice versa, 14 ALR3d 703.

Entering judgment or decree of divorce nunc pro tunc, 19 ALR3d 648.

Spouse’s acceptance of payments under alimony or property settlement or child support provisions of divorce judgment as precluding appeal therefrom, 29 ALR3d 1184.

Divorce, wife’s right to award of counsel fees in final judgment of trial or appellate court as affected by the fact that judgment was rendered against her, 32 ALR3d 1227.

Power of divorce court to deal with real property located in another state, 34 ALR3d 962.

Right of child to enforce provisions for his benefit in parents’ separation or property settlement agreement, 34 ALR3d 1357.

Income of child from another source as excusing parent’s compliance with support provisions of divorce decree, 39 ALR3d 1292.

Mutual mistake as to tax consequences as ground for relief against property settlement, 39 ALR3d 1376.

Annulment of later marriage as reviving prior husband’s obligation under alimony decree or separation agreement, 45 ALR3d 1033.

Consideration of tax liability or consequences in determining alimony or property settlement provisions, 51 ALR3d 461; 9 ALR5th 568.

Retrospective increase in allowance for alimony, separate maintenance, or support, 52 ALR3d 156.

Provision in divorce decree that one party obtain or maintain life insurance for benefit of other party or child, 59 ALR3d 9.

Propriety of consideration of, and disposition as to, third persons’ property claims in divorce litigation, 63 ALR3d 373.

Divorce decree purporting to award life insurance to husband as terminating wife-beneficiary’s rights notwithstanding failure to formally change beneficiary, 70 ALR3d 348.

Evaluation of interest in law firm or medical partnership for purposes of division of property in divorce proceedings, 74 ALR3d 621.

Right to allowance of permanent alimony in connection with decree of annulment, 81 ALR3d 281.

Statute expressly allowing alimony to wife, but not expressly allowing alimony to husband, as unconstitutional sex discrimination, 85 ALR3d 940.

Adulterous wife’s right to permanent alimony, 86 ALR3d 97.

Fault as consideration in alimony, spousal support, or property division awards pursuant to no fault divorce, 86 ALR3d 1116.

Father’s liability for support of child furnished after divorce decree which awarded custody to mother but made no provision for support, 91 ALR3d 530.

Pension or retirement benefits as subject to award or division by court in settlement of property rights between spouses, 94 A.L.R.3d 176.

Propriety in divorce proceedings of awarding rehabilitative alimony, 97 ALR3d 740.

Propriety of decree in proceeding between divorced parents to determine mother’s duty to pay support for children in custody of father, 98 ALR3d 1146.

Responsibility of noncustodial divorced parent to pay for, or contribute to, costs of child’s college education, 99 ALR3d 322.

Validity and effect, as between former spouses, of agreement releasing parent from payment of child support provided for in an earlier divorce decree, 100 ALR3d 1129.

Spouse’s professional degree or license as marital property for purposes of alimony, support, or property settlement, 4 ALR4th 1294.

Laches or acquiescence as defense, so as to bar recovery of arrearages of permanent alimony or child support, 5 A.L.R.4th 1015.

Husband’s death as affecting periodic payment provision of separation agreement, 5 ALR4th 1153.

Removal by custodial parents of child from jurisdiction in violation of court order as justifying termination, suspension, or reduction of child support payments, 8 ALR4th 1231.

Appointment or discharge of receiver for marital or community property necessitated by suit for divorce or separation, 15 ALR4th 224.

Effect of trial court giving consideration to needs of children in making property division — modern status, 19 ALR4th 239.

Validity and enforceability of escalation clause in divorce decree relating to alimony and child support, 19 ALR4th 830.

Spouse’s liability, after divorce, for community debt contracted by other spouse during marriage, 20 ALR4th 211.

Divorce and separation: Appreciation in value of separate property during marriage without contribution by either spouse as separate or community property, 24 ALR4th 453.

Excessiveness or adequacy of amount of money awarded for alimony and child support combined, 27 ALR4th 1038.

Necessity that divorce court value property before distributing it, 51 ALR4th 11.

Enforceability of premarital agreements governing support or property rights upon divorce or separation as affected by circumstances surrounding execution—modern status, 53 ALR4th 85.

Enforceability of premarital agreements governing support or property rights upon divorce or separation as affected by fairness or adequacy of those terms—modern status, 53 ALR4th 161.

Propriety of distribution leaving both parties with substantial ownership interest in same business, 56 ALR4th 862.

Divorce order requiring that party not compete with former marital business, 59 ALR4th 1075.

Prejudgment interest awards in divorce cases, 62 ALR4th 156.

Voluntary contributions to child’s education expenses as factor justifying modification of spousal support award, 63 ALR4th 436.

Withholding visitation rights for failure to make alimony or support payments, 65 ALR4th 1155.

Effect of court order prohibiting sale or transfer of property on party’s right to change beneficiary of insurance policy, 68 ALR4th 929.

Attributing undisclosed income to parent or spouse for purposes of making child or spousal support award, 70 ALR4th 173.

Goodwill in medical or dental practice as property subject to distribution on dissolution of marriage, 76 ALR4th 1025.

Accrued vacation, holiday time, and sick leave as marital or separate property, 78 ALR4th 1107.

Divorce and separation: goodwill in law practice as property subject to distribution on dissolution of marriage, 79 ALR4th 171.

Authority of court, upon entering default, to make order for child custody or support which were not specifically requested in pleadings of prevailing party, 5 ALR5th 863.

Consideration of tax consequences in distribution of marital property, 9 ALR5th 568.

Award of interest on deferred installment payments of marital asset distribution, 10 ALR5th 191.

Recovery under state law of attorney’s fees by lay pro se litigant, 14 ALR5th 947.

Consideration of obligated spouse’s earnings from overtime or “second-job” held in addition to regular full-time employment in fixing alimony or child support awards, 17 ALR5th 143.

Excessiveness or adequacy of attorneys’ fees in domestic relations cases, 17 ALR5th 366.

Loss of income due to incarceration as affecting child support obligation, 27 ALR5th 540.

Treatment of depreciation expenses claimed for tax or accounting purposes in determining ability to pay child or spousal support, 28 A.L.R.5th 46.

Copyright, patent, or other intellectual property as marital property for purposes of alimony, support, or divorce settlement, 80 ALR5th 487.

Divorce decree or settlement agreement as affecting divorced spouse’s right to recover as named beneficiary on former spouse’s individual retirement account, 99 ALR5th 637.

Propriety of equalizing income of spouses through alimony awards, 102 ALR5th 395.

Right to credit on child support arrearages for time parties resided together after separation or divorce, 104 ALR5th 605.

Right to credit against child support arrearages for time child spent in custody of noncustodial parent, other than for visitation or under court order, without custodial parent’s approval, 108 ALR5th 359.

Divorce and separation: Determination of whether proceeds from personal injury settlement or recovery constitute marital property, 109 ALR5th 1.

Division of lottery proceeds in divorce proceedings, 124 ALR5th 537.

Propriety of “hindsight” charge in medical malpractice actions, 124 ALR5th 623.

Pre-emptive effect of Employee Retirement Income Security Act (ERISA) provisions (29 USCS §§ 1056(d)(3), 1164(a), 1144(b)(7)) with respect to orders entered in domestic relations proceedings, 116 ALR Fed. 503.

I.General Consideration

This section and former AS 09.55.210 (now AS 25.24.160 ) are predicated upon the court’s jurisdiction of the parties and the subject matter. Weber v. Weber, 10 Alaska 214 (D. Alaska 1942).

Effect of 1992 amendment. —

The 1992 amendment to this section was a material change in circumstances for any custodial parent who had an unmarried child over eighteen, living at home, who was still attending high school. Scully v. Scully, 987 P.2d 743, 988 P.2d 743 (Alaska 1999).

Because the 1992 amendment to this section extends the time during which a parent may be required to pay child support, it qualifies as a change in the law governing child support guidelines. Scully v. Scully, 987 P.2d 743, 988 P.2d 743 (Alaska 1999).

Alimony decree may be modified. —

Alimony payments may be set aside, altered, or modified under this section any time after judgment. Hinchey v. Hinchey, 722 P.2d 949 (Alaska 1986).

A decree providing for alimony, whether or not based upon a contract, may be modified or terminated upon the death of the husband, the remarriage of the wife, or a change in the financial condition of the parties. Goggans v. Osborn, 237 F.2d 186, 16 Alaska 451 (9th Cir. Alaska 1956).

But where the judgment in a divorce action makes no provision for maintenance, there is nothing to modify under this section. Green v. Green, 113 F. Supp. 697, 14 Alaska 395 (D. Alaska 1953).

Challenge of an order of support as unconstitutional is not a request for modification under this section, but is a request for relief from a prior order of judgment under Alaska Civ. R. 60. Burrell v. Burrell, 696 P.2d 157 (Alaska 1984).

Section is inapplicable to interlocutory decrees. —

This section does not give the court power to modify provision of an interlocutory decree requiring the husband to pay his wife sums for attorney’s fees for disbursements. Scudder v. Scudder, 11 Alaska 303 (D. Alaska 1947).

Modification of divorce decrees in respect to accumulated payments past due is not allowed. Robbins v. Robbins, 647 P.2d 589 (Alaska 1982).

A property division incorporated within a divorce decree is a final judgment and is modifiable to the same extent as any equitable decree of the court. However, because the parties did not file their respective motions within one year of the decree, the trial court erred in modifying the decree. O'Link v. O'Link, 632 P.2d 225 (Alaska 1981); Stone v. Stone, 647 P.2d 582 (Alaska 1982); Allen v. Allen, 645 P.2d 774 (Alaska 1982).

Despite the fact that retirement pensions, military or otherwise, are paid out on a monthly, prospective basis, pensions are property and decrees resolving rights to property are modifiable only to the extent that relief may be obtained from any other final judgment. Clauson v. Clauson, 831 P.2d 1257 (Alaska 1992).

Property settlement not modifiable. —

Statutory provisions for divorce do not authorize a court to modify the terms of a property settlement. Stone v. Stone, 647 P.2d 582 (Alaska 1982).

This section does not authorize a court to modify a decree as it relates to property rights. Allen v. Allen, 645 P.2d 774 (Alaska 1982).

This section does not give the superior court the authority to modify an agreement incorporated into a property award with regard to the marital portion of benefits, such as military pension benefits. Husband’s motion to modify the agreement on the basis of changed financial circumstances was denied except as to the non-marital portion of his military pension. Wirtz v. Wirtz, — P.3d — (Alaska Mar. 24, 2010) (memorandum decision).

Court may not be deprived of jurisdiction retained over custody of children. —

Where the court retained jurisdiction over the custody of the children, any action to divest the court of that jurisdiction would be void, and could not in any way divest the court of authority to award the custody of the children to a proper person. In re Brown's Children, 7 Alaska 411 (D. Alaska 1926).

Removal of children from state does not affect right to modify decree. —

The power of the court to modify a divorce decree as to care and custody of a minor child is not affected by the removal of the child from the jurisdiction by the parent to whom he was awarded. Weber v. Weber, 10 Alaska 214 (D. Alaska 1942).

Since subject matter is still before court. —

Where children are removed beyond the limits of the state after the decree has been rendered, the subject matter remains within the jurisdiction of the court, so that its judgment in an application for modification is valid and binding upon the parent to whom the custody has been decreed, and is enforceable in another state. Weber v. Weber, 10 Alaska 214 (D. Alaska 1942).

But custody decrees are necessarily provisional and temporary in character and are ordinarily not res adjudicata either in the same court or that of a foreign jurisdiction, except as to the facts before the court at the time of the decree. Weber v. Weber, 10 Alaska 214 (D. Alaska 1942).

And state to which child is removed need not respect decree. —

Where both of the parents were resident in Alaska and subject to the jurisdiction of the Alaska courts, and one asked for the modification of the original decree of the court awarding the custody of their child to the father, but it appeared that since the rendition of that decree the child had been taken out of Alaska and was then living in Minnesota with the brother of the father of the child, the court held that it had the power to modify the decree as to the custody of the child in any way it saw fit, and might even punish the father for contempt for failure to obey its decree, but that the state of Minnesota would not be bound to respect the decree. Weber v. Weber, 10 Alaska 214 (D. Alaska 1942).

Extension of support past majority not a modification. —

Barring an affirmative provision in the original support order or in an incorporated agreement establishing that the issue of post-majority support was expressly considered and decided, a subsequent motion to extend the duration of support is not a motion to modify the original order and need not allege a change of circumstances. Department of Revenue, Child Support Enforcement Div. v. McCormick, 3 P.3d 930 (Alaska 2000).

In determining that a former wife should receive 60 percent of the marital property, the trial court did not allocate property to the wife to account for a child’s future college expenses, even though it noted that the child would have to look to her mother as the only 100 percent reliable underwriter of a future college expense. Cartee v. Cartee, 239 P.3d 707 (Alaska 2010).

Retroactive modification of child support. —

The superior court abused its discretion when it retroactively modified the interim child support order in the absence of extraordinary circumstances. Jones v. Jones, 666 P.2d 1031 (Alaska 1983).

Standard for certain modifications of support orders was altered by this section, amending Alaska R. Civ. P. 90.3; support may be modified without a showing of changed circumstances when necessary to comply with federal law. Lawson v. Lawson, 108 P.3d 883 (Alaska 2005).

Applicability of provision regarding post-majority child support. —

While a father claimed that this section did not apply because his son’s aunt and uncle, with whom the son was living temporarily, did not meet the statutory requirement of parent, guardian, or designee of the parent or guardian, those definitions were premised on the existence of legal custody, which did not exist after the son turned 18. Brotherton v. Warner, 240 P.3d 1225 (Alaska 2010).

Post-majority child educational support. —

In light of former AS 09.55.210 and 09.55.220 (now AS 25.24.160 and this section, respectively) it does not appear that the legislature intended to provide for post-majority educational support in either an original decree, or in a modification of the original decree, and to the extent Hinchey v. Hinchey, 625 P.2d 297 (Alaska 1981), overruled, Dowling v. Dowling, 679 P.2d 480 (Alaska 1984).

Appellate court presumed that the superior court intended a support order to continue for any 18-year-olds actively pursuing a high school diploma. Ruppe v. Ruppe, 358 P.3d 1284 (Alaska 2015).

It was no error to continue a father's child support obligation after a child turned 18 because (1) the child's economic situation did not change, (2) the child lived at home the same amount of time while attending boarding school, and (3) the manner in which the child pursued a high school diploma did not change. Kack v. Kack, — P.3d — (Alaska June 1, 2016) (memorandum decision).

Rehabilitative alimony is modifiable only when there is a material and substantial change in circumstances related to its purpose. Musgrove v. Musgrove, 821 P.2d 1366 (Alaska 1991).

If a recipient of equitable rehabilitative support achieves rehabilitation or stops trying to obtain education or training to improve her employment skills and earning capacity, that changed circumstance justifies termination of maintenance. However, achievement or cessation of rehabilitative efforts cannot be presumed by the fact of remarriage. Musgrove v. Musgrove, 821 P.2d 1366 (Alaska 1991).

Departure so as to ensure intended benefits. —

Trial judge did not abuse her discretion in departing from the divorce decree by ordering the husband to make a deposit into each of his children’s educational accounts when the wife needed to use the children’s permanent fund dividends due to the husband being in arrears in his child support payment, as it was within the judge’s discretion to depart from the decree to ensure that both the wife and the children received the intended benefits. Teseniar v. Teseniar, 74 P.3d 910 (Alaska 2003).

Applied in

Johnson v. Johnson, 544 P.2d 65 (Alaska 1975); Veazey v. Veazey, 560 P.2d 382 (Alaska 1977); Leighton v. Leighton, 563 P.2d 882 (Alaska 1977); Cedergreen v. Cedergreen, 811 P.2d 784 (Alaska 1991).

Quoted in

Brenton v. Brenton, 564 P.2d 1225 (Alaska 1977); Van Brocklin v. Van Brocklin, 635 P.2d 1186 (Alaska 1981).

Cited in

Johansen v. State, 491 P.2d 759 (Alaska 1971); Richmond v. Richmond, 779 P.2d 1211 (Alaska 1989).

II.Grounds for Modification

General rule. —

Generally, the rule is that modification of a support order may be obtained only where there has been a material and substantial change in circumstances occurring subsequent to the original order. The change ordinarily must be more or less permanent rather than temporary. Curley v. Curley, 588 P.2d 289 (Alaska 1979); Burrell v. Burrell, 696 P.2d 157 (Alaska 1984).

Integral provisions not subject to modification. —

Superior court properly denied spouse’s motion to modify his monthly stipend obligation to wife, as that provision requiring monthly payments was an integral part of the couple’s property settlement and therefore was not modifiable based on a change in former wife’s circumstances including completion of vocational training, retention of gainful employment, and subsequent remarriage. Skvarch v. Skvarch, 876 P.2d 1110 (Alaska 1994).

Retroactive operation of subsection (b). —

The legislature intended the 1988 amendment adding subsection (b) to operate retroactively. Charlesworth v. State, Child Support Enf't Div., 779 P.2d 792 (Alaska 1989).

An order may be modified notwithstanding the fact that it was based on a separation agreement or stipulation signed by the parties. Curley v. Curley, 588 P.2d 289 (Alaska 1979).

The adoption of Civil Rule 90.3 constituted a material change of circumstances within the meaning of subsection (b). Charlesworth v. State, Child Support Enf't Div., 779 P.2d 792 (Alaska 1989); Dewey v. Dewey, 969 P.2d 1154 (Alaska 1999).

A change in decisional law is not a change in circumstances that would allow the superior court to modify a divorce decree under this section, eliminating the portion of the decree requiring the husband to pay post-majority educational child support. Lawrence v. Lawrence, 718 P.2d 142 (Alaska 1986).

Adoption of the child support guidelines rule was itself a substantial change in circumstances. Perry v. Newkirk, 871 P.2d 1150 (Alaska 1994).

Determination of change in circumstances. —

The appropriate benchmark from which to consider whether there has been a change of circumstances is the last time the issue of alimony and factors relevant to modification were actually considered. Burrell v. Burrell, 696 P.2d 157 (Alaska 1984).

Neither intimate personal relationships between the dependent former spouse and a third party or reasonable efforts by the dependent former spouse to reduce expenses constitute a material and substantial change in circumstances. Musgrove v. Musgrove, 821 P.2d 1366 (Alaska 1991).

Factors to be considered. —

In determining whether a change in circumstances justifies a reduction in one parent’s child support obligation, the court must consider both the needs of the child or children supported as well as the needs and financial abilities of both parties. Curley v. Curley, 588 P.2d 289 (Alaska 1979).

One factor that may be considered is whether the child’s needs are less than they were at the time of the divorce. More commonly, however, the child’s needs are the same or greater than they were at the time of entry of a support order, and it is the moving parent’s needs that are greater or whose income is less. In such cases, the trial court must examine the financial situation of both parents and determine whether the equities justify placing a greater burden on one and a correspondingly lesser burden on the other. Curley v. Curley, 588 P.2d 289 (Alaska 1979).

A spousal support judgment in favor of the wife was not void due to a lack of due process when the judgment was entered because the husband had notice that spousal support would be addressed, he knew the wife’s mental state and indigence would be relied on for an award, and a pretrial order explicitly included spousal support as a trial issue. The husband was not barred from discovering the wife’s finances or mental state, and his failure to conduct discovery did not mean his due process notice was insufficient. The order finding the judgment void did not address the sufficiency of the trial court’s procedures but the sufficiency of the evidence, which was only properly addressed on appeal, which was not pursued. Blaufuss v. Ball, 305 P.3d 281 (Alaska 2013).

Substantial reduction in or cessation of income. —

As a general rule, a substantial reduction in or cessation of a spouse’s income is a factor that may justify or require a reduction in alimony or maintenance. Hinchey v. Hinchey, 722 P.2d 949 (Alaska 1986).

Where a settlement agreement set husband’s child support at a minimum amount, “irrespective of his income” and subsequently his income fell 15% below his income in the year of the agreement, denial of his motion to modify support on the ground that unequal distribution of property provided sufficient consideration for the agreement was error; husband was entitled to modification of his obligation under the guidelines of Civil Rule 90.3. Aga v. Aga, 941 P.2d 1260 (Alaska 1997).

Change in number of children supported. —

Because there were facts alleged that, if true, showed a material change, including whether the daughter still lived with the father or was being financially supported by him, it was improper to deny the mother’s motion to modify child support without a hearing. Marian S. v. Pierce S., — P.3d — (Alaska Sept. 12, 2012) (memorandum decision).

Failure to make specific showings of extent of decrease. —

Although father alleged his income had changed drastically, he did not make any specific showings of the extent to which his income had decreased in relation to his expenses to warrant modifying his support obligation. Dewey v. Dewey, 886 P.2d 623 (Alaska 1994).

Payments exceeding cap set in rule. —

An agreement that based child support payments on income exceeding the cap set forth in Alaska R. Civ. P. 90.3(c)(2) was subject to modification upon a showing of a material change of circumstances. Flannery v. Flannery, 950 P.2d 126 (Alaska 1997).

Temporary loss of income by obligor. —

A trial court should be reluctant to modify child support obligations when the obligor’s loss of income appears only temporary. Patch v. Patch, 760 P.2d 526 (Alaska 1988).

When a court is asked to reduce a child support obligation where the parent seeking the reduction is temporarily employed at an income level that does not accurately reflect past and future income levels, the court may properly consider the availability of liquid assets (such as a father’s pension fund) to satisfy an ongoing child support obligation. Patch v. Patch, 760 P.2d 526 (Alaska 1988).

Even where a noncustodial parent loses a job by other than voluntary resignation, the trial court must consider all the circumstances of the change in employment to determine whether a modification of child support is warranted. Patch v. Patch, 760 P.2d 526 (Alaska 1988).

Recalculation of obligations. —

The fact that one method of child support calculation yielded a result more than 15% different from another method used in an extant order was not a material change in circumstances authorizing modification of the order. Bunn v. House, 934 P.2d 753 (Alaska 1997).

Removal of the children from the state should not automatically shift custody without a hearing. Sherry v. Sherry, 622 P.2d 960 (Alaska 1981).

The superior court did not abuse its discretion in refusing to reduce a father’s child support obligation. —

Where father sought a reduction in support less than a year after entry of the divorce decree on the basis that his income had been reduced and his expenses had increased, but some of his expenses were related to providing housing for himself and his emancipated son, the superior court did not abuse its discretion in refusing to reduce the father’s child support obligation. Curley v. Curley, 588 P.2d 289 (Alaska 1979).

Inadequate grounds for modification. —

Trial court did not err in its valuation of a husband’s child support payments; the wife did not produce any calculation showing that he had a change in circumstances that would increase her entitlement by at least 15 percent. Williams v. Williams, 252 P.3d 998 (Alaska 2011).

Superior court did not abuse its discretion in denying a former wife’s motion to extend her spousal support because none of her arguments identified a material and substantial change in circumstances and the court had thoroughly discussed her health problems, age, employment history, medical expenses, and health insurance. Knudsen v. Berg, — P.3d — (Alaska Mar. 5, 2014) (memorandum decision).

Remarriage requires termination of alimony. —

Remarriage of a former spouse constitutes a substantial change of circumstances that requires the termination of alimony as a matter of law. Voyles v. Voyles, 644 P.2d 847 (Alaska 1982).

Death of wife given custody warrants revising decree. —

Where the wife was given custody of the children of the marriage in a divorce action, and the wife subsequently died, the status of the parties was so changed that the court was warranted in revising the original decree. In re Brown's Children, 7 Alaska 411 (D. Alaska 1926).

But mistakes do not. —

The change in circumstances test relates to changes in external facts, not to mistakes; thus, where support order was based upon recipient’s miscalculation of the length of time required to complete a doctoral program, her subsequent realization of her error did not warrant modification of the support order. Larson v. Larson, 661 P.2d 626 (Alaska 1983).

In a child support modification proceeding, the trial court abused its discretion under Alaska R. Civ. P. 90.3(h)(2) by failing to make a child support modification order effective the date the father was served with the petition, as well as by denying post-majority support for the parties’ daughter. Dep't of Revenue, Child Support Servs. Div. ex rel. Peterson v. Kosto, — P.3d — (Alaska Mar. 4, 2009) (memorandum decision).

Collateral references. —

Husband’s default, contempt or other misconduct as affecting modification of decree for support, 6 ALR2d 835.

Retrospective modification of, or refusal to enforce, decree for alimony, separate maintenance, or support, 6 ALR2d 1277, 52 ALR3d 156.

Changing financial conditions or needs of husband or wife as grounds for modification of decree for alimony or maintenance, 18 ALR2d 10.

Court’s power to vacate decree of divorce or separation upon request of both parties, 3 A.L.R.3d 1216.

Mutual mistake as to tax consequences as ground for relief against property settlement, 39 ALR3d 1376.

Annulment of later marriage as reviving prior husband’s obligations under alimony decree or separation agreement, 45 ALR3d 1033.

Divorced woman’s subsequent sexual relations or misconduct as warranting, alone or with other circumstances, modification of alimony decree, 98 ALR3d 453.

Laches or acquiescence as defense, so as to bar recovery of arrearages of permanent alimony or child support, 5 A.L.R.4th 1015.

Husband’s death as affecting periodic payment provision of separation agreement, 5 ALR4th 1153.

Power to modify spousal support award for a limited term, issued in conjunction with divorce, so as to extend the term or make the award permanent, 62 ALR4th 180.

Divorce: Voluntary contributions to child’s education expenses as factor justifying modification of spousal support award, 63 ALR4th 436.

Death of obligor parent as affecting decree for support of child, 14 ALR5th 557.

Retirement of husband as change of circumstances warranting modification of divorce decree — Prospective retirement, 110 ALR5th 237.