Barlow v. Thompson

221 P.3d 998 (Alaska 2009) · Supreme Court of Alaska · December 18, 2009 · No. S-13206

Summary

The Alaska Supreme Court reviewed a custody and child-support dispute between Elkam Barlow and Tracy Thompson. The court affirmed the superior court's jurisdiction, custody determination, evidentiary rulings, and rejection of bias and visitation-interference claims. It vacated the monthly child-support award because the record lacked sufficient findings to support imputing income to Barlow and remanded for recalculation.

Court
Supreme Court of Alaska
Writing for the Court
Eastaugh, Justice; Carpeneti, Chief Justice; Fabe, Justice; Winfree, Justice; Christen, Justice
Jurisdiction
Alaska
Decision date
December 18, 2009
Docket number
S-13206
Procedural posture
Barlow appealed a superior court custody and child-support order. The Alaska Supreme Court affirmed the custody determination but vacated the monthly child-support award and remanded for further proceedings concerning imputed income.
Standard of review
Subject-matter jurisdiction is reviewed de novo. Child-custody determinations are reviewed for abuse of discretion, with underlying factual findings reviewed for clear error. Evidentiary rulings and the weight assigned to child-custody factors are reviewed for abuse of discretion. Findings concerning a party's income and imputation of income for child support are reviewed for clear error.
Precedential value
Published opinion; precedential
Parties
Elkam Barlow v. Tracy Thompson
Disposition
reversed_and_remanded

Topics

child custodychild supportsubject matter jurisdictionappellate procedurehearsay

Practice areas

Family lawAppellate procedureChild supportEvidenceCivil procedure

Questions Presented

  1. Whether the Alaska superior court had subject-matter and personal jurisdiction over the custody dispute despite Barlow's objection and lack of consent.
  2. Whether the superior court improperly acted as counsel for Thompson by citing controlling statutory authority in denying Barlow's jurisdictional motion.
  3. Whether the master and superior court were biased against Barlow or abused their discretion in evidentiary rulings, factual findings, custody-factor weighting, and requiring Barlow to complete an anger-management assessment.
  4. Whether Thompson's alleged interference with Barlow's visitation required reversal of the custody order.
  5. Whether the superior court erred by imputing income to Barlow and setting his monthly child-support obligation at $452 without the required findings.

Holdings

  1. The superior court had subject-matter jurisdiction because Alaska was the child's home state when the custody proceeding commenced and Alaska law grants the superior court jurisdiction over such custody disputes.
  2. The superior court had personal jurisdiction over Barlow because he was served in Alaska; his lack of consent did not deprive the court of personal jurisdiction.
  3. The superior court did not improperly act as counsel for Thompson by citing AS 25.30.300 in its ruling; a court may cite controlling law even when a party fails to brief it.
  4. The master's evidentiary rulings and factual findings did not constitute an abuse of discretion or establish bias against Barlow.
  5. The alleged interference with visitation did not require reversal of the custody order because Barlow failed to establish an abuse of discretion, and two of the incidents were not preserved for appeal.
  6. The $452 monthly child-support award was reversible error because the record lacked the findings necessary to support imputing income to Barlow; the award was vacated and remanded for recalculation.

Key quotations

“The rule does not state or imply that the court must dismiss if the suggestion, as here, is without merit.” (221 P.3d at 1002)
“A court "can in its discretion impute income where a party is voluntarily and unreasonably `underemployed.'"” (221 P.3d at 1003)
“We vacate the monthly support award of $452 and remand to the superior court for recalculation of Barlow's monthly child support obligation.” (221 P.3d at 1003)

Factual background

Thompson and Barlow, who were never married, had a daughter born in October 1996. Thompson moved out of state with the child when the child was approximately two and a half years old, later returning to Alaska when the child was about five. After Thompson filed for custody in July 2007, the superior court referred the custody, visitation, and support issues to a master, who recommended that Thompson receive sole legal and primary physical custody and that Barlow pay $452 per month in child support. The support amount was based substantially on imputing annual income of $31,200 to Barlow, although the record showed substantially lower actual income and lacked specific findings concerning unreasonable underemployment.

Procedural history

Thompson filed a custody complaint in the Alaska superior court. The superior court denied Barlow's jurisdictional and recusal motions, adopted a master's recommendations awarding Thompson sole legal and primary physical custody, and ordered Barlow to pay $452 per month in child support. Barlow appealed the jurisdiction, custody, evidentiary, bias, visitation, and support rulings.

Remand instructions

The superior court must recalculate Barlow's monthly child-support obligation. If the award is based on imputed income, the court must make findings addressing the requirements for imputing income, including whether Barlow was voluntarily and unreasonably underemployed and the relevant employment and financial circumstances.

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