Benjamin C. v. Nalani S.
| Decision Date | 29 December 2021 |
| Docket Number | S-17968 |
| Court | Alaska Supreme Court |
| Parties | BENJAMIN C., Appellant, v. NALANI S., Appellee. |
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Superior Court No. 3HO-18-00235 CI Homer Bride Seifert, Judge.
Benjamin C., pro se, Homer, Appellant.
Notice of nonparticipation filed by Shana Theiler, Walton, Theiler & Winegarden, LLC, Kenai, for Appellee.
Before: Winfree, Chief Justice, Maassen, Carney, and Borghesan, Justices.
A superior court awarded shared physical custody of a child to the mother and father and ordered the father to pay child support.. The court denied the father's request to reduce his child support obligation, along with a series of other motions he had filed. The father appeals the court's denials. Seeing no error, we affirm the court's decisions.
In January 2018 Benjamin C.[1] and Nalani S. were living together and expecting a child. Benjamin and Nalani separated following a heated argument. Nalani then sought and obtained a temporary domestic violence protective order against Benjamin because she did not want him present at their child's birth. The child was born in late August, and Nalani subsequently withdrew her protective order petition.
Benjamin sought custody shortly after the child was born. In May 2019 the superior court awarded joint legal custody and 60/40 shared physical custody, with Nalani having the higher custody percentage. The court deviated from an equal physical custody split because Benjamin's fishing work made him unavailable during summers. The court set Benjamin's child support obligation under Alaska Civil Rule 90.3 at $114.27 monthly and ordered both parties to submit updated income documentation. Because the parties had disputed vaccinating the child, the court ordered the child vaccinated under Centers for Disease Control (CDC) recommended schedules. The court also ordered Nalani to deposit the child's Permanent Fund Dividend (PFD) payments into a bank account, specifying that "[b]oth parents must have access to all account statements."
The superior court's custody decree explicitly made "no findings regarding domestic violence," noting only "that [Benjamin] was forced to miss the birth of his first child because [Nalani] had filed a domestic violence protective order." The court denied Nalani's request to reconsider this finding, describing her use of the protective order system to prevent Benjamin having any involvement in the child's birth as an abuse of process. The court concluded that the restraining order "should not have been granted" because Nalani alleged in her petition that Benjamin hit his own head against the wall out of frustration, not that he "committed any act of aggression or violence against her."
In November Benjamin filed a motion to impute income to Nalani, and Nalani responded in kind. Each argued that the other was unreasonably under employed; Nalani protested that Benjamin worked only seasonally as a fisherman, and Benjamin protested that Nalani's home daycare business was under-earning. The case was reassigned to a new judge, who held a hearing on imputing income. The parties ultimately compromised by reducing Benjamin's child support obligation to $63.62 monthly effective November 1, 2019; the court entered their agreement as the new child support order, denying both motions to impute income.
In August 2020 Benjamin filed three more motions. First, Benjamin moved to compel production of bank statements from the account in which Nalani had deposited the child's PFD money, citing the court's May 2019 order that both parents have access to bank statements from the account. Second, Benjamin moved to compel production of Nalani's business records to verify the income claimed on her child support affidavit, citing the Rule 90.3 provision that either party to an ongoing child support order may annually request documentation of the other party's income.[2] Third, Benjamin moved to adjust child support, arguing that his payment amount was miscalculated because Nalani's income had not been adjusted upward to reflect two tax credits that she had received by claiming her daughter from a previous relationship as a dependent.
Benjamin made five additional relevant requests. First, Benjamin requested that the court order Nalani to deposit the child's PFD money into a separate account and provide Benjamin online viewing access. Second, Benjamin again requested that the court impute income to Nalani, arguing that she had admitted to working only 20 hours per week and had testified that taking care of their child did not impede her ability to work. Third, Benjamin requested that the court order Nalani to change providers for the child's medical care, arguing that the clinic she used had excluded Benjamin from visits and had not adequately complied with the vaccination order. Fourth, Benjamin asked the court to reconsider compelling Nalani to attend counseling for what he called her "alienating behavior"; he asserted that the court would have treated Nalani more harshly if she were a man. Fifth, Benjamin asked that Nalani be held in contempt for allegedly lying to the court and failing to promptly comply with its orders.
The superior court resolved Benjamin's various motions following an evidentiary hearing in November 2020. The court revisited the parties' child support agreement because Benjamin alleged it did not comply with Rule 90.3. The parties again compromised, agreeing that Benjamin's $63.62 monthly child support obligation would continue and would be "in accordance with [Rule] 90.3." The court denied Benjamin's motion regarding the tax credits as moot, denied his request to impute income, and granted in part his motion to compel business records. The court provided for an exchange of financial information in March 2021, when Benjamin would be eligible to again seek modification of his child support obligation based on new information.
The superior court granted Benjamin's request for an order to put the child's PFD money in a separate bank account, to which both parents would have access.
But the court denied Benjamin's motion to compel bank statements for Nalani's bank account, explaining that because the child's money was to be deposited into a new account, compelling statements from the old account would be pointless.
The superior court denied Benjamin's request to order a change in medical providers, noting that vaccination records showed the child was "current right now." The court denied Benjamin's request to mandate counseling for Nalani. The court found that although parental alienation occurred during the first several months after the child's birth, Benjamin had presented no evidence of Nalani since alienating the child from him.
The superior court denied Benjamin's motion for a hearing to show cause based on Nalani's noncompliance with court orders. The court agreed to hear some testimony on the issue, later acknowledging: "The record does contain evidence that [Nalani] has been slow to comply or not fully complied with court orders in the past." But the court found that "at present both parties are in compliance with court orders."
Benjamin attempted to raise an issue with the temporary protective order Nalani had obtained against him in August 2018. Benjamin did not specify any action he wanted the court to take. The court said it would not hear testimony because the issue already had been addressed; first by the issuing judge and again by the first custody judge, who had noted that he would not have issued the order. The court reassured Benjamin that it was "not holding that [protective order] against [him] in any way."
Benjamin also complained that Nalani was receiving preferential treatment because of her gender. Benjamin made no specific request related to this complaint. The superior court expressed understanding of Benjamin's frustration with the process. The court later assured him that it "seriously considers any type of gender bias . . . alleged" and how domestic violence, child support, or custody issues "would look if it [were] from a mother instead of a father . . . because historically, mothers did get . . . more of a nod."
Benjamin, self-represented, now appeals the superior court's judgment on nine distinct issues. He contends that the superior court erred in its disposition of child support issues by: (1) not calculating tax credits Nalani claimed as income; (2) not compelling disclosures verifying Nalani's income; and (3) not imputing additional income to Nalani. He contends that the superior court erred in its custodial decisions by: (1) declining to require Nalani to produce records of the child's PFD deposit and (2) declining to order a change in the child's healthcare provider. Finally, Benjamin contends that the court erred by: (1) declining to hold Nalani in contempt; (2) declining to order that Nalani attend counseling; (3) refusing to consider a motion to expunge the temporary domestic violence protective order from Benjamin's record and from online court records; and (4) discriminating against Benjamin on the basis of gender.
Benjamin contends that the child support amount he and Nalani agreed to at the November 2020 hearing deviated from the formula in Rule 90.3. He argues that the superior court erred by ratifying the agreement without specifying a reason for the deviation. Assuming...
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