HOWE v. HOWE, S-12424 (Alaska 4-30-2008)

HOWE v. HOWE, S-12424 (Alaska 4-30-2008)

RICHARD V. HOWE, JR., Appellant, v. SARAH F. HOWE, Appellee.

Supreme Court No. S-12424.Supreme Court of Alaska.
April 30, 2008.

NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d). Accordingly, this memorandum decision may not be cited for any proposition of law or as an example of the proper resolution of any issue.

Appeal from the Superior Court of the State of Alaska, Third Judicial District, Palmer, Eric Smith, Judge, Superior Court No. 3PA-05-1562 CI.

Appearances: Rick Howe, pro se, Boerne, Texas. Sarah F. Howe, pro se, Palmer.

Before: Fabe, Chief Justice, Matthews, Eastaugh, Carpeneti, and Winfree, Justices.

MEMORANDUM OPINION AND JUDGMENT[fn*]I. INTRODUCTION
A father contests the decision of the superior court in a divorce proceeding. He challenges the award of custody of his children to the mother, the property allocation, and the child support determination. He also alleges that his due process rights were violated.Page 2

II. FACTS AND PROCEEDINGS
Sarah and Richard Howe were married in 1990. They have three children, J., born in 1993, N., born in 1995, and A., born in 1998. They permanently separated in April 2005. On May 18, 2006, a hearing was held to determine custody, child support, the division of property between Sarah and Richard, and to issue a final decree of divorce. The court made oral findings on custody and awarded Sarah sole legal and primary physical custody. The judge held that continuity favored Sarah and that Richard’s behavior had sometimes alienated the children from their mother. Richard was awarded visitation on two of every three weekends during the school year; during the summer, he would have custody of the children except for two out of every three weekends.

The court issued separate written findings of fact and conclusions of law regarding the property division on June 28, 2006. The court awarded the family house in Palmer, the principal asset of the parties, to Sarah and gave Richard sixty-two percent of the overall marital debt. The court also fixed the amount of child support owed by Richard in an order dated June 29, 2006. The decree of divorce was also issued on June 29, 2006.

Richard subsequently moved to Texas.

III. DISCUSSION A. The Superior Court Did Not Abuse Its Discretion in DeterminingCustody.

Trial courts have broad discretion in determining child custody issues.[fn1] We will reverse a child custody decision only if we find that the trial court has abused itsPage 3
discretion or that the controlling findings of fact are clearly erroneous.[fn2]

Richard argues that the superior court should have granted hybrid custody, as this would have been in the best interests of the children.[fn3] At the custody hearing, Richard had asked only for “joint” and “shared” custody; he did not mention hybrid custody. Richard mentioned hybrid custody only in passing in his motion for reconsideration before the superior court, and his request now leaves unspecified how the hybrid custody arrangement would work. Under these circumstances, we consider this argument to be waived.[fn4]

Richard’s other contentions lack merit. He asserts that the superior court improperly considered allegations of domestic violence. But the court noted thatPage 4
domestic violence was not a factor in its decision.[fn5] Richard also claims that the court was biased against him because he admitted that he is suffering from, and has been treated for, a mental illness.[fn6] But there is no evidence that the court was biased against Richard.[fn7]

Richard additionally asserts that the superior court ignored the children’s wishes, ignored evidence of Sarah’s adultery, and relied on a report by the custody investigator that showed “bias” against him. The court found that J.’s preference should be taken into account in determining custody, but did not give it much weight;[fn8] the other two children were deemed too young to have a preference.[fn9] The court was aware of Richard’s allegations about Sarah’s adultery, but did not seem to feel they were relevant for the purpose of deciding custody;[fn10] the superior court did not abuse its discretion inPage 5
reaching this conclusion. Richard does not provide any evidence that the custody investigator was biased, nor did the court uncritically rely on the custody investigator’s report. Finally, Richard cites Smith v.Weekley[fn11] for the proposition that there should be no presumption that the parent awarded interim custody should be granted permanent custody. But the superior court did not rely on any such presumption. Rather, the court reviewed all relevant best interest factors and found that they favored Sarah.

B. The Superior Court Did Not Abuse Its Discretion in DividingProperty Between the Parties.

Division of property is committed to the discretion of the trial court. Property division involves a three-step process: determining the property available for distribution, valuing the property, and equitably allocating the property. We review all three steps for abuse of discretion.[fn12]

Richard asserts that Sarah had not fully disclosed all of her income. He argues that the cash distribution of a college fund should have been split sixty percent in favor of him, that the value of a van was improperly assessed, and that the “allocation of all the positive assets [to Sarah] constitutes a[n] unjust windfall which caused [Richard] to file for bankruptcy.” Richard asserts but provides no citations to the record indicating why he believes that Sarah has “lied and misused” marital funds or not fully disclosed income and gifts. His claims (including the claims about the van and the college fund)Page 6
are nearly impossible to assess because of lack of citations to the record, and we deem them waived.[fn13]

Richard also believes that he is entitled to part of the inheritance Sarah received after her mother died.[fn14] In its order denying Richard’s motion for reconsideration, the superior court “emphasize[d] that defendant’s inheritance from her mother is her separateproperty and is not a factor for child support purposes because plaintiff is the obligor in this case.” This conclusion is in accord with our case law,[fn15] and Richard presents no evidence for his claim that Sarah’s inheritance should have been considered marital property.[fn16]Page 7
C. The Superior Court Did Not Abuse Its Discretion in Determining theAmount Richard Owed in Child Support.

Richard makes several arguments regarding the amount of child support he is required to pay. He asserts that awarding child and spousal support “using Veterans[‘] Disability compensation” violated his rights and is in violation of federal law and the United States Constitution. He also alleges that the Child Support Services Division (CSSD) “continues to confiscate [his] Federal Income Tax” and has “made a habit of working outside the State law and imposing Federal law.” He accuses the CSSD of “poor case management” and of not reviewing the entire civil record at his request.

The superior court correctly ruled that Richard’s Veteran Administration benefits could be included in an award for child support per Alaska Civil Rule 90.3.[fn17] Richard’s claims regarding federal law and the United States Constitution are without merit.[fn18]Page 8

The CCSD is not a party to this case, and so Richard’s allegations that it has violated his rights are not properly before us.

D. Richard’s Due Process Rights Were Not Violated.

Richard contends that the superior court violated “civil procedure and due process” by (1) not considering evidence from previous motions in the final trial; (2) reneging on its promise to “allow time to review the record for evidence submission”; (3) directly attacking his character; (4) allowing Sarah to attack his character; (5) not allowing evidence to be provided concerning Sarah’s character; (6) “despite perjury committed by the defendant” not allowing questioning of the “contradicting statements submitted or made during the course of the [trial]”; and (7) showing bias.

Richard offers no citations to the record for his allegations, nor does he develop his points beyond merely stating them. Although we relax standards for pro se litigants,[fn19] it still does not relieve them of the obligation to develop arguments in more than a cursory manner or to provide appropriate citations to the record.[fn20] We therefore deem these arguments waived. Moreover, our independent review of the record and the hearing in this case lead us to the conclusion that Richard’s due process claims are without merit.[fn21]Page 9

IV. CONCLUSION
For the reasons stated above, we AFFIRM the superior court’s judgment.

[fn*] Entered pursuant to Appellate Rule 214. [fn1] Evans v. Evans, 869 P.2d 478, 479 (Alaska 1994). [fn2] Id. [fn3] Hybrid custody is when “at least one parent has primary physical custody of one or more children of the relationship, and the parents have shared physical custody of at least one child of the relationship.” Alaska R. Civ. P. 90.3(f)(4). [fn4] See Katz v. Murphy, 165 P.3d 649, 661 (Alaska 2007) (“Alaska Civil Rule 77(k), which governs motions for reconsideration, does not allow the moving party to raise new grounds as a basis for reconsideration; instead the rule only allows reconsideration of points that were overlooked or misconceived despite having been properly raised.”);cf. Stadnicky v. Southpark Terrace Homeowner’s Ass’n, 939 P.2d 403, 405
(Alaska 1997) (noting that issue raised for first time in motion for reconsideration is untimely and insufficient to preserve claim for appeal); Neal Co. v. Ass’n of Vill. Council Presidents Reg’l Hous.Auth., 895 P.2d 497, 506 (Alaska 1995) (holding no abuse of discretion when trial court declined to reconsider ruling based upon evidence that was not before it at the time it made its initial decision where moving party offered no explanation for failing to present evidence earlier);see also A.H. v. W.P., 896 P.2d 240, 243-44 (Alaska 1995) (issues waived due to inadequate briefing by pro se litigant). [fn5] The court stated that “[t]here’s no — there are a lot of allegations of abuse. I addressed them in other contexts. I don’t really see anything. . . .” [fn6] Richard does not suggest that he is legally incompetent. [fn7] At the hearing, the judge heard testimony from Richard about his psychological state; Richard also read a letter from his psychologist testifying to his good mental health. The court made indirect reference to Richard’s mental illness when it noted that he was working with a therapist on substance abuse, and that the therapist felt that Richard was making “progress.” [fn8] The court agreed with the custody investigator that he could not “give much weight” to J.’s preference. The custody investigator’s report stated that Richard did not permit his children “to come to their own conclusions regarding the family situation.” [fn9] See AS 25.24.150(c)(3) (best interests of the child include the child’s preference “if the child is of sufficient age and capacity to form a preference”). At the time of the hearing, N. was ten years old and A. was eight. [fn10] The court at the hearing referred to telephone conversations between J. and Richard where Richard discussed Sarah’s relationship with her boyfriend prior to the divorce. [fn11] 73 P.3d 1219, 1224 (Alaska 2003). [fn12] Sampson v. Sampson, 14 P.3d 272, 275 (Alaska 2000) (citations omitted). [fn13] A.H., 896 P.2d at 243-44. Moreover, the court reviewed a list of the parties’ property with both Richard and Sarah. The court’s explanations for its valuation of property demonstrate that there was no abuse of discretion. [fn14] In her brief before the superior court, Sarah wrote that “the unexpected death of her mother brings with it a small inheritance that might enhance her creditworthiness.” Although in her brief before this court, Sarah claims that she had not yet received the inheritance at the time of the hearing, we have held that where a prospective inheritance from an immediate family member “is virtually certain, the court may give it some weight in considering how to divide the property.”Krize v. Krize, 145 P.3d 481, 490 (Alaska 2006). Here, Richard has failed to show that the size of the inheritance would have any significant effect on the relative financial positions of the parties or that the trial court erred by failing to take it into account in its property division. [fn15] See, e.g., Sampson, 14 P.3d at 276 (“There is a strong presumption that inherited property is separate property not to be included in the disposition of property during a divorce.”); Julsen v.Julsen, 741 P.2d 642, 647-48 (Alaska 1987) (inheritance received by one spouse during marriage is not marital property). [fn16] Richard claims that the inheritance money was “transmuted into the family property such as the children[‘s] college funds” and therefore is subject to division. But Richard offers no support for this claim; there is no proof that Sarah intended the inheritance to be used as marital property. See Abood v. Abood, 119 P.3d 980, 984 (Alaska 2005) (transmutation of property occurs when a married couple demonstrates the intent that one spouse’s separate property be used as marital property) (quoting Schmitz v. Schmitz, 88 P.3d 1116, 1125 (Alaska 2004)). Moreover, commingling property does not automatically lead to a finding of transmutation. Id.

Richard also states that he “believes he was also part of the will,” but again offers no support for this contention.

[fn17] Alaska R. Civ. P. 90.3(a)(1); see Alaska R. Civ. P. 90.3, cmt. III (2007) (“Income includes, but is not limited to . . . Veteran Administration benefits.”). [fn18] See Rose v. Rose, 481 U.S. 619, 636 (1987) (permitting veterans’ benefits to be used for child support); see also 24A AM. JUR. 2DDivorce and Separation § 1003 (1998) (state statutes authorizing child support using veterans’ benefits not preempted by federal law). [fn19] Peterson v. Ek, 93 P.3d 458, 464 n. 9 (Alaska 2004) (we “judge apro se litigant’s performance by a less demanding standard”) (citation omitted). [fn20] See, e.g., Gates v. City of Tenakee Springs, 822 P.2d 455, 460
(Alaska 1991) (pro se litigant’s arguments waived for inadequate briefing); Alaska R. App. P. 212(c)(1)(I) (argument section of a brief “shall contain the contentions of the appellant . . . with citations to the . . . parts of the record relied on.”). [fn21] At various points in his brief, Richard cites Texas law. While helpful, perhaps, as persuasive authority, Texas law does not bind us in this matter. See AS 25.30.310 (court that has made a child custody determination has exclusive and continuing jurisdiction).

Richard also appears to argue that the award of attorney’s fees in this case was unjust. Because he offers no analysis and only cites cases, this argument is waived.Page 1