Jerry B. v. Sally B.

• Decision Date: 10 June 2016
• Docket Number: Supreme Court No. S–15684
• Citation: 377 P.3d 916
• Parties: Jerry B., Appellant, v. Sally B., Appellee.
• Court: Alaska Supreme Court

377 P.3d 916

Jerry B., Appellant

v.Sally B., Appellee.

Supreme Court No. S–15684

Supreme Court of Alaska.

June 10, 2016

Rehearing Denied August 9, 2016

Jerry B., pro se, Haverhill, Massachusetts, Appellant.

No appearance by Appellee Sally B.

Before: Stowers, Chief Justice, Fabe, Winfree, Maassen, and Bolger, Justices.

OPINION

BOLGER

, Justice.

I. INTRODUCTION

A husband and wife separated after the husband was charged with sexually abusing their minor daughter. The husband eventually pleaded guilty to the crime of indecent exposure in the first degree. In the civil divorce suit, the superior court took judicial notice of the conviction, concluded that the husband's sexual offense was the cause of his current financial woes and was therefore a form of economic misconduct, and divided the marital property 70–30 in the wife's favor. The court also concluded that the wife had not wasted or otherwise misused marital funds she had withdrawn between separation and trial and accordingly declined to recapture those funds in the property division.

The husband appeals, claiming the superior court should not have considered his criminal offense and by doing so demonstrated bias against him. The husband also contends that the superior court abused its discretion by favoring the wife in the property division and that his due process rights were violated.

We conclude that the impartiality of the superior court cannot be reasonably questioned, that the court properly considered the husband's conviction and its consequences in the property division, and that the husband's due process rights were not violated. But the superior court erred by treating the wife's attorney's fees as marital expenses, by failing to address the husband's request for fees, and by adjusting the property division to account for expenses the husband was separately obligated to pay. Accordingly, we remand this case for further proceedings consistent with this decision.

II. FACTS AND PROCEEDINGS

Jerry B. and Sally B.¹ married in August 1999, and moved to Juneau in the early 2000s. They have three children: Lara, born in December 1994; John, born in June 2001; and Daniel, born in March 2006. For most of their marriage, Jerry held relatively high-paying investment jobs, while Sally raised their children as a stay-at-home mother.

Jerry was arrested in April 2011 on allegations that he sexually abused Lara repeatedly over an eight-year period. He was indicted the next week on 100 counts of sexual abuse of a minor in the first degree.² In April 2012, however, the superior court dismissed the indictment. A grand jury soon reindicted Jerry on four counts of sexual abuse.³

Within a week of Jerry's April 2011 arrest, Sally filed for divorce. Alleging that Jerry had “a history of domestic violence and sexual abuse,” Sally requested primary physical and sole legal custody of the parties' children and asked the superior court to require that Jerry's contact with the children be supervised. Jerry denied the claims of domestic violence and sexual abuse and requested joint legal and shared physical custody of the children. Sally peremptorily challenged the superior court judge originally assigned to the case,⁴ and the case was reassigned to Superior Court Judge Philip M. Pallenberg, who also was presiding over Jerry's criminal case.

Early in the proceedings Sally moved for interim attorney's fees and costs, spousal maintenance, and child support. She noted that she had “been a stay-at-home mother for the last 12 years[ ] and [was] currently unemployed,” while Jerry “earn[ed] over $170,000 per year working for [a state agency].” Jerry opposed the motion, pointing out that his incarceration prevented him from earning an income. The superior court determined that it would not award Sally “interim attorney's fees, spousal maintenance, or child support in excess of the minimum amount” if Jerry was no longer receiving income from his previous employer. But the court allowed Sally “to make reasonable withdrawals [from marital accounts] for attorney's fees and for living expenses.”

In response to this order Sally requested a hearing “to address [her] continuing difficulty in accessing marital funds to support herself and the parties' three children, pay all the marital bills, and also to pay her attorney's fees.” The superior court granted this request for hearing. The court's subsequent written order specified that Sally “shall promptly be paid one-half of [Jerry's] deferred compensation account, less 25% to be withheld for federal income tax” and “one-half of [Jerry's] [Supplemental Annuity Plan] account, less 35% to be withheld—25% for federal income tax plus 10% for the early withdrawal penalty.” The court informed the parties that it would “hold in abeyance until trial any decision on whether or how the above distributions should affect the overall property distribution.”

In November Sally moved for a protective order to stay Jerry's proposed depositions of Sally and Lara and all other discovery in the case until the conclusion of Jerry's criminal proceedings.⁵ The superior court granted the motion but clarified that “[t]he issue ... [was] not whether [Jerry would] get[ ] to take these depositions ... [but] when he may take them—before or after his criminal trial.” (Emphases in original.) Because the court concluded that “the primary reason [Jerry] wants to take the depositions now is to defend against the sexual abuse allegations”—that is, not to prepare for his civil divorce trial—the court stayed all discovery in the civil case until the resolution of Jerry's criminal case.

In April 2012 Sally asked the superior court for permission to lease the marital residence. Sally claimed both she and Lara had “very strong and very negative associations with the marital home as the location where [Jerry] repeatedly sexually abused [Lara], and verbally and emotionally abused [Sally], over a period of years,” which made it “very difficult” for Sally and Lara to continue living there. Sally indicated that by renting a smaller home in downtown Juneau and by leasing out the marital home, she could save about $375 monthly. Over Jerry's objection the superior court granted Sally's request, but limited the lease period to 12 months.

In late 2012 Jerry pleaded guilty to indecent exposure in the first degree.⁶ All other charges against him were dismissed.

In March 2013 Jerry—then self-represented—once again sought to depose Sally. Sally moved for a protective order prohibiting the deposition, claiming Jerry would violate his conditions of parole by deposing her. The superior court denied Sally's motion but ordered that the deposition be conducted telephonically. Jerry then sought to videotape the deposition, and when Sally refused to attend a videotaped deposition, Jerry moved to compel her participation, arguing that “video is essential to his understanding of what actually occurred in the room.” At a hearing on the matter the court reiterated that Jerry could depose Sally telephonically but “not by videotape.” The court also denied Jerry's request to view the deposition via video feed in real time, without recording. Jerry then declined to depose Sally, claiming his inability to view the deposition would prevent him from effectively questioning Sally.

In June Jerry asked the superior court to extend the marital home lease period an additional nine months. Sally opposed this extension and cross-moved for the immediate sale of the property. She argued that “being legally and economically tied to a sex offender who has abused one's children is, in and of itself, emotionally damaging and draining.” The court granted Sally's cross-motion to sell the residence and denied Jerry's request to extend the lease. Agreeing with Sally's argument, the court concluded that because “[Sally] is the victim of a serious felony offense committed by [Jerry] against the parties' child, I believe it would be entirely inappropriate to force [Sally] to remain in a business relationship with [Jerry] against her will.”⁷ (Footnote omitted.)

In November Jerry moved to disqualify Judge Pallenberg for bias. Jerry noted that Judge Pallenberg had been exposed to potentially prejudicial information in the criminal case. Jerry further argued that Judge Pallenberg's exposure to this evidence had caused the judge to form opinions about the allegations against Jerry. As a result, Jerry argued, Judge Pallenberg's adjudication of the criminal case created an appearance of bias in the civil proceedings.

Jerry also argued that Judge Pallenberg's decisions in the civil case demonstrated actual bias. Jerry argued that Judge Pallenberg, when ruling on interlocutory orders, ignored Jerry's affidavit-supported denial of all charges while improperly relying on (1) arguments in Sally's briefings that were unsupported by evidence; (2) Sally's accusations against him, which were based in hearsay; and (3) the indecent exposure conviction. Jerry also took issue with the court's conclusion that Sally met the legal definition of “victim.” And Jerry complained that the court had demonstrated bias in favor of Sally by ordering the sale of the marital home and by prohibiting him from deposing her in person or by video. The superior court denied Jerry's disqualification motion, and the reviewing court affirmed this denial.⁸

The superior court held a trial in January 2014. At the outset the parties stipulated to a child custody agreement awarding Sally sole legal and primary physical custody of John and Daniel.⁹ Sally agreed to keep John and Daniel in counseling until she was advised by the counselor that counseling was no longer necessary. The parties also stipulated to the value of many of the couple's most significant assets and debts; the property stipulation did not, however, cover the parties' vehicles or household goods. And it did not address

how the property should be divided[,] the economic impacts of the divorce [,] ... the characterization of the property[

...