Opinion
Supreme Court No. S-11965.
September 5, 2007.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Palmer, Eric Smith, Judge, Superior Court No. 3PA-03-01469 Civil.
Dana L. Olson, pro se, Wasilla. David A. Golter, Golter Logsdon, P.C., Palmer, for Appellee.
Before: Fabe, Chief Justice, Matthews, Eastaugh, Bryner, and Carpeneti, Justices.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d). Accordingly, this memorandum decision may not be cited for any proposition of law or as an example of the proper resolution of any issue.
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
I. INTRODUCTION
Dana Olson, appearing pro se, appeals a superior court decision that divorced her from her then-husband Nansen Olson, awarded Nansen sole legal and primary physical custody of the couple's two minor children, and ordered Dana to pay Nansen child support. Although Dana's briefing is often difficult to comprehend, she argues that the superior court lacked jurisdiction to hear Nansen's divorce claim, that the court erred in awarding Nansen custody of the children, that she should not have been ordered to pay child support, and that she was denied due process. As each of these claims is unavailing, we affirm the superior court's decision in its entirety.
II. FACTS AND PROCEEDINGS
A. Facts
Dana and Nansen were married in California in 1974. They have lived in Alaska for a number of years. They had eight children together, but only two are minors at this time. The couple own property in Trapper Creek and in Wasilla. Nansen is not employed due to a permanent disability. He receives disability benefits from the Department of Veterans Affairs. Dana is employed as a sales associate in Wasilla.
The Olsons separated in 2000. While separated, Nansen lived in Trapper Creek, and Dana lived in Wasilla. During the separation, the two minor children and their eighteen-year-old brother lived with Nansen in Trapper Creek, with Dana visiting once every few weeks.
B. Proceedings
In October 2003 Nansen, through retained counsel, filed for divorce. He requested sole legal and primary physical custody of the couple's minor children, child support, and an equitable division of the couple's assets and liabilities.
Dana, representing herself, contested the divorce. She filed a large number of motions with the superior court, often attempting to litigate issues completely extraneous to the divorce proceedings. The superior court resolved each motion on its merits.
For example, Dana sought to join the Department of Environmental Conservation as a party in order to enjoin it from issuing a permit for the construction of an incinerator facility near the Olsons' Wasilla residence.
Trial was held in March and April 2005. In the first part of a bifurcated bench trial, Superior Court Judge Eric Smith granted a final decree of divorce, finding that there was "an incompatibility of temperament between the parties to the extent that it is no longer reasonably possible for them to live together as husband and wife." In April 2005 Judge Smith concluded the second part of the bench trial to address the issues of custody, support, and property division. Both Dana and Nansen testified. With regard to child custody, the court found that both parents loved their children and that the children loved both parents. But the court also found that Nansen was better able to meet their needs and that awarding primary custody to Nansen would promote continuity for the children.
Based on these findings, the superior court awarded Nansen sole legal and primary physical custody of the children. Because Nansen testified that he intended to move from Trapper Creek to Kenai, the court issued a custody order that covered both Nansen's present and future living arrangements. While Nansen lived in the Mat-Su Valley (Trapper Creek), Dana could visit with the children every other weekend. If Nansen moved to the Kenai Peninsula, the visitation schedule would be modified such that Dana could visit with the children every third weekend. Dana was granted "liberal telephonic access" and "[l]iberal visitation in the Kenai area consistent with the children's schedules." The parties remained free to modify the visitation schedule by mutual agreement.
Concerning child support, the superior court applied Alaska Civil Rule 90.3 to calculate the amount of support that Dana was required to pay. The court ordered Dana to pay $394 each month for the support of the couple's two minor children, plus an extra $25 per month to cover half of the children's health insurance costs, for a total of $419 per month.
The superior court equally distributed the couple's assets and liabilities, awarding Nansen $30,221 and Dana $30,067 of net value. The Trapper Creek properties were given to Nansen, while Dana received the more valuable lot located in Wasilla. Although Nansen was awarded more personal property than Dana, he assumed slightly more debt.
Dana appeals.
III. STANDARDS OF REVIEW
We review the superior court's custody determination and child support award for abuse of discretion. We will reject the court's factual findings only if they are clearly erroneous.
Osmar v. Mahan, 53 P.3d 149, 150 (Alaska 2002) (child support); Evans v. Evans, 869 P.2d 478, 479-80 (Alaska 1994) (custody).
Evans, 869 P.2d at 479-80.
Arguments that are not "developed and supported by the necessary authority," even when brought by pro se litigants, will generally be considered waived.
See A.H. v. H.P., 896 P.2d 240, 244 (Alaska 1995).
IV. DISCUSSION
A. Dana's Briefing Is Not So Inadequate as To Waive All Her Claims.
Nansen argues that Dana has waived all points on appeal due to her failure to adequately brief them. Although Dana's briefing does not allow appellate review in many respects, several of her arguments are sufficiently developed to avoid waiver.
Claims brought by pro se litigants in this court are judged "by a less demanding standard" than is applied to litigants who are represented by counsel. Although "an argument is considered waived when the party cites no authority and fails to provide a legal theory for his or her argument," failure to cite legal authority has been excused when a pro se litigant's briefing allows this court and the opposing party to discern and respond to his or her legal arguments.
Gilbert v. Sperbeck, 126 P.3d 1057, 1062 (Alaska 2005) (internal citation See also Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987).
Peterson v. Ek, 93 P.3d 458, 464 n. 9 (Alaska 2004) (citations omitted).
Many of the arguments made by Dana have no connection with the divorce and custody issues that were addressed by the trial court in this case. Dana argues, for instance, that the rule against perpetuities should be measured by 1,000 years even though the perpetuities period is clearly irrelevant to the divorce and custody issues involved in this case. However, certain portions of Dana's briefing apprise both Nansen and this court of the gravamen of her arguments. This is sufficient to avoid waiver of these claims. Therefore, Dana has not waived her arguments challenging the superior court's jurisdiction, the child custody award, the child support order, and her allegation that she was denied due process. Because the same cannot be said about Dana's remaining claims, we conclude that she has waived those claims by failing to adequately brief them.
See id. (concluding that no waiver occurred where pro se litigant's briefing "was such that we could discern his legal arguments and [the opposing party] could reply to them").
B. The Superior Court Had Jurisdiction To Issue the Divorce Decree.
Dana argues that the fact that she was involved in several other unrelated civil cases should have precluded the superior court from exercising jurisdiction over Nansen's divorce action. We disagree.
For a court to exercise jurisdiction over a given case, it must have personal jurisdiction over the parties and subject matter jurisdiction over the claims asserted. The scope of the superior court's personal jurisdiction is governed by AS 09.05.015, which provides that Alaska courts may exercise personal jurisdiction over a defendant who "is a natural person domiciled in this state." Alaska's superior courts are courts of general jurisdiction and therefore "hav[e] the power to hear all controversies which may be brought before [them] within the legal bounds of rights or remedies, except insofar as has been expressly and unequivocally denied by the state's constitution or statutes."
Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).
Nw. Med., Inc. v. State, Dep't of Revenue, 151 P.3d 434, 438 (Alaska 2006).
Siggelkow v. State, 731 P.2d 57, 61 (Alaska 1987) (emphasis in original). See also ALASKA CONST. art. IV, § 3 ("The superior court shall be the trial court of general jurisdiction. . . .").
These authorities make clear that the superior court validly exercised both personal and subject matter jurisdiction in this case. The court validly exercised personal jurisdiction over Dana because the record shows that she lives in Alaska and intends to remain here, making Alaska her domicile. As for subject matter jurisdiction, not only are there no statutes or constitutional provisions that explicitly deny the superior court jurisdiction over divorce claims, but there are several statutes that explicitly and implicitly recognize that jurisdiction. In sum, the superior court had jurisdiction to hear this case. Dana's involvement in unrelated litigation in another judicial district does not affect this conclusion.
See AS 09.05.015(a)(1)(B).
See Siggelkow, 731 P.2d at 61.
See AS 22.10.020 (providing that superior court is trial court of general jurisdiction, with original jurisdiction in all civil matters); AS 22.10.025 (setting out powers of superior court in action for divorce, separation, or child support); cf. AS 25.24.210 (providing that dissolution petition "shall be filed with the superior court").
C. The Superior Court Did Not Err in Granting Nansen Sole Legal and Primary Physical Custody.
Dana next argues that the superior court erred in awarding custody of the couple's two minor children to Nansen. Again, we cannot agree.
The trial court "must base custody determinations upon the child's best interests, using the factors listed in AS 25.24.150(c)." We will reverse a custody determination where "the trial court considered improper factors in making its custody determination, failed to consider statutorily mandated factors, or assigned disproportionate weight to particular factors while ignoring others."
Schmitz v. Schmitz, 88 P.3d 1116, 1122 (Alaska 2004).
Hamilton v. Hamilton, 42 P.3d 1107, 1111 (Alaska 2002).
Here, the superior court issued a set of oral findings in which it addressed which custody arrangement would be in the children's best interest. The court found that Nansen was better able to meet the children's needs and that awarding Nansen custody would promote continuity. As these findings are well supported by the record, and as the superior court did not consider improper factors in making its custody determination, the superior court did not err in awarding Nansen sole legal and primary physical custody of the couple's children. D. The Superior Court Did Not Err in Ordering Dana To Pay Child Support.
Dana argues that the superior court should not have awarded child support to Nansen. We disagree.
Alaska Civil Rule 90.3 states that where one parent has been awarded primary physical custody, a child support award may be calculated "as an amount equal to the adjusted annual income of the non-custodial parent multiplied by a percentage specified in sub-paragraph (a)(2)."
Our review of the record convinces us that the superior court properly calculated Dana's child support payments. As the parent who had been awarded primary physical custody, Nansen was entitled to child support payments. The court appears to have calculated Dana's child support obligations by applying the formulas set out in Rule 90.3 to the earnings report that Dana belatedly provided to the court. Because the superior court correctly applied Rule 90.3 to calculate the amount of support that Dana (the non-custodial parent) owed, the superior court did not abuse its discretion in ordering her to make the specified child support payments.
Because there were two children involved, Civil Rule 90.3(a)(2) specified that Dana's support award should be twenty-seven percent of her annual income.
E. Dana Was Not Denied Due Process.
Dana's final argument is that she was denied due process. This argument is unsupported by the record.
This court has identified the crux of due process as "an opportunity to be heard and the right to adequately represent one's interests." Under this approach, due process is satisfied where an individual is given "an opportunity to be heard in court at a meaningful time and in a meaningful manner."
Matanuska Maid, Inc. v. State, 620 P.2d 182, 192 (Alaska 1980).
Keyes v. Humana Hosp. Alaska, Inc., 750 P.2d 343, 353 (Alaska 1988) (citing Mathews v. Eldridge, 424 U.S. 319, 333 (1976)).
Here, Dana's involvement in the superior court proceedings clearly shows that she was afforded due process. Dana actively litigated her case in the superior court by filing a myriad of motions that the court addressed in earnest, by cross examining witnesses, and by participating in oral arguments before the court. These proceedings provided Dana with an opportunity to be heard and to protect her interests. Dana was therefore not denied due process.
V. CONCLUSION
We AFFIRM the superior court's decision in its entirety.