Thompson v. Thompson, Supreme Court No. S-17262

CourtSupreme Court of Alaska (US)
Writing for the CourtCARNEY, Justice.
Citation454 P.3d 981
Parties Sharon THOMPSON, Appellant, v. Everett THOMPSON, Appellee.
Decision Date29 November 2019
Docket NumberSupreme Court No. S-17262

454 P.3d 981

Sharon THOMPSON, Appellant,
v.
Everett THOMPSON, Appellee.

Supreme Court No. S-17262

Supreme Court of Alaska.

November 29, 2019
Petition for Rehearing Denied January 13, 2020


Jacob A. Sonneborn, Law Office of Jacob Sonneborn, Anchorage, and A. William Saupe, Ashburn & Mason, Anchorage, for Appellant.

Kara A. Nyquist, Anchorage, for Appellee.

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

OPINION

CARNEY, Justice.

I. INTRODUCTION

A divorced wife challenges the superior court's child custody determination, marital property division, and child support order. Because we conclude that the court neither clearly erred nor abused its discretion when it awarded joint legal and shared physical custody, we affirm the custody determination. But we vacate and remand the child support order because it does not include sufficient findings to support the calculation of the parents' income. And we vacate and remand the property division because the court improperly separated a fishing vessel from the rest of the marital estate. Finally, we vacate and remand the attorney's fees award for consideration in light of the court's recalculation of the marital estate and the parties' incomes.

II. FACTS AND PROCEEDINGS

A. Facts

Sharon and Everett Thompson married in 2011. They have two minor children, a son born in 2011 and a daughter born in 2015.

Everett is a commercial fisherman living in Naknek. He owns two fishing vessels, one of which he purchased and fully paid off before he and Sharon married; the second vessel, the F/V NORTHERN FLYER, was purchased during the marriage.

Everett and Sharon began dating in 2010; soon afterward Sharon moved into Everett's home, which he had purchased in 2001, and which is situated on a Native allotment that cannot be transferred to a non-Native buyer.1 Although she worked in various jobs before they married, Sharon stayed home with the children during much of the parties' marriage. In financial documents filed in superior court Sharon indicated her primary occupation was film production.

B. Proceedings

In April 2017 Sharon filed for divorce, seeking primary physical and sole legal custody of their children. Everett answered the following month, asserting that he should have sole legal and primary physical custody as well as interim possession of the marital home. Sharon and Everett negotiated an interim custody agreement, which the court approved in December 2017. Their agreement provided for joint legal custody and established a schedule for alternating physical custody every two days.

1. Hearings relevant to custody determination

a. January 2018

In mid-January 2018 Sharon petitioned for ex parte domestic violence protective orders against Everett on behalf of herself and the children.2 She alleged that she had reason to believe their daughter may have been sexually abused while in Everett's custody, though she did not allege that Everett had committed sexual abuse; Sharon also alleged Everett had verbally and emotionally abused her. The court granted Sharon a short-term protective order against Everett and granted

454 P.3d 986

her temporary custody of the children. But the court did not issue protective orders on behalf of the children, as it found Sharon had not established probable cause that Everett had committed a crime of domestic violence against them.3

Everett moved to modify the temporary custody order, under which his visits with the children had to be supervised. He sought to return to the alternating custody schedule in the parties' interim custody agreement.

A hearing was held over January 24 and 25 on Everett's modification motion. Sharon and Everett agreed that the children had been in Everett's custody until he had dropped them off at daycare on the morning of January 8, after which Sharon's two days of custodial time started. Sharon testified that later on January 8 she had observed that their daughter had unusual vaginal discharge and "a bright red ... nick" on her genital area. Sharon had taken her to a health clinic in Naknek the following day for an examination, which revealed a three-millimeter laceration near the girl's vaginal opening. Sharon also testified that shortly afterward she took the child to Dillingham for a more thorough examination at a Child Advocacy Center (CAC), including swabs for DNA and sexually transmitted infections.4 Everett testified that he had supervised the children during his custodial time and that "nothing happened in [his] care"; he suggested that the girl's symptoms could have been caused by a yeast infection or by her accidentally scratching herself. The court restored Everett's unsupervised visits with the children, but allowed Sharon to retain temporary custody for the duration of the short-term protective order.

The court held a hearing on Sharon's request for long-term protective orders on January 30, 2018. Sharon reiterated what she had observed on her daughter on January 8 and 9; Everett expressed skepticism that the symptoms were the result of sexual abuse. The court denied long-term protective orders for Sharon and the children, finding that Sharon had not established by a preponderance of the evidence that Everett had committed an act of domestic violence against any of them.

b. June 2018

In late May 2018 Sharon moved to modify interim custody, alleging that their daughter again appeared to have been sexually abused while in Everett's custody. Sharon also revived her previous sexual abuse allegation based on the DNA result, which showed male DNA was present on the child but insufficient for analysis. Sharon accused Everett of failing to respond to the abuse allegations appropriately and of "minimiz[ing] them and repeatedly suggest[ing] that Sharon is the perpetrator." Everett opposed her motion, asserting that Sharon was attempting to interfere with his custodial time by alleging abuse; he emphasized that no Office of Children's Services (OCS) case or criminal charges had been filed and that he had voluntarily submitted a sample of his own DNA when asked to do so by law enforcement.

The court held a hearing in early June on the modification motion. The nurse practitioner who had examined the girl at the Naknek clinic in January testified that she had observed an injury "consistent with penetration" and that Everett, who visited the clinic shortly after the exam, had seemed more concerned about what Sharon had told clinic staff than about the injury. The nurse practitioner also testified that she did not know when the injury had occurred, but noted that "in children, injuries to the genitalia usually heal within 72 hours." Everett testified that he "would take it very seriously" if he believed his child had in fact been abused but that he had "no indication that something may have been wrong with [her]" and had never seen signs of her being sexually abused while in his care. He stated that he "still d[id] not believe that she was sexually assaulted." He suggested that the laceration

454 P.3d 987

may have come from the child's own fingernail and that the male DNA may have been transferred from her brother or from someone with whom she had contact while in Sharon's custody.

A few days later the court issued an order modifying interim custody. The court maintained the two-day alternating schedule for their son, but required that their daughter spend nights with Sharon and only be with Everett from 9:00 a.m. to 7:30 p.m. on his custodial days. The court also prohibited Everett from leaving the children in any third party's care, aside from their daycare, during his custodial time.

2. Divorce proceedings

A five-day divorce and custody trial was held in early August 2018. In late August the court issued its decree of divorce, child support order, and findings of fact and conclusions of law.

a. Custody determination

The court awarded Sharon and Everett joint legal and shared physical custody of both children. It modified the custody schedule from alternating every two days to alternating every three or four days. The court found that the timing and cause of their daughter's injury had not been "conclusively establish[ed]" and that Everett had credibly testified at trial that he appreciated the seriousness of sexual abuse allegations and could respond appropriately. The court therefore found that both parents were equally capable of meeting the children's needs.

b. Child support

Having determined that the parents would share custody, the court next considered child support. The court based its determination of Everett's income for child support purposes on his 2016 tax return, which it found provided "a reasonable representation" of his fluctuating fishing income. Based on his tax return the court found that Everett's adjusted annual income for child support purposes was $61,185.5 The court reached this figure by applying the...

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14 practice notes
  • Andrew B. v. Abbie B., Supreme Court No. S-17740
    • United States
    • Supreme Court of Alaska (US)
    • 3 Septiembre 2021
    ...Co. , 299 P.3d 715, 719 (Alaska 2013) (quoting In re Life Ins. Co. of Alaska , 76 P.3d 366, 368 (Alaska 2003) ).5 Thompson v. Thompson , 454 P.3d 981, 988-89 (Alaska 2019).6 Gambini v. Hamilton , 440 P.3d 184, 189 (Alaska 2019) (quoting Tomal v. Anderson , 426 P.3d 915, 923 n.8 (Alaska 2018......
  • Andrew B. v. Abbie B., S-17740
    • United States
    • Supreme Court of Alaska (US)
    • 3 Septiembre 2021
    ...Co., 299 P.3d 715, 719 (Alaska 2013) (quoting In re Life Ins. Co. of Alaska, 76 P.3d 366, 368 (Alaska 2003)). [5]Thompson v. Thompson, 454 P.3d 981, 988-89 (Alaska 2019). [6]Gambini v. Hamilton, 440 P.3d 184, 189 (Alaska 2019) (quoting Tomal v. Anderson, 426 P.3d 915, 923 n.8 (Alaska 2018))......
  • Aubert v. Wilson, Supreme Court No. S-17573
    • United States
    • Supreme Court of Alaska (US)
    • 26 Marzo 2021
    ...distributes property to the decedent's heirs." Id. at 112.2 Kessler v. Kessler , 411 P.3d 616, 618 (Alaska 2018).3 Thompson v. Thompson , 454 P.3d 981, 988 (Alaska 2019) (quoting Engstrom v. Engstrom , 350 P.3d 766, 769 (Alaska 2015) ).4 Pasley v. Pasley , 442 P.3d 738, 744 (Alaska 2019) (q......
  • Wright v. Dropik, Supreme Court No. S-17769
    • United States
    • Supreme Court of Alaska (US)
    • 24 Junio 2022
    ...test.’ " (quoting Anchorage Chrysler Ctr., Inc. v. DaimlerChrysler Corp. , 129 P.3d 905, 916 (Alaska 2006) )); Thompson v. Thompson , 454 P.3d 981, 988 (Alaska 2019) ("Whether there are sufficient findings for informed appellate review is a question of law." (quoting Horne v. Touhakis , 356......
  • Request a trial to view additional results
16 cases
  • Andrew B. v. Abbie B., Supreme Court No. S-17740
    • United States
    • Supreme Court of Alaska (US)
    • 3 Septiembre 2021
    ...Co. , 299 P.3d 715, 719 (Alaska 2013) (quoting In re Life Ins. Co. of Alaska , 76 P.3d 366, 368 (Alaska 2003) ).5 Thompson v. Thompson , 454 P.3d 981, 988-89 (Alaska 2019).6 Gambini v. Hamilton , 440 P.3d 184, 189 (Alaska 2019) (quoting Tomal v. Anderson , 426 P.3d 915, 923 n.8 (Alaska 2018......
  • Andrew B. v. Abbie B., S-17740
    • United States
    • Supreme Court of Alaska (US)
    • 3 Septiembre 2021
    ...Co., 299 P.3d 715, 719 (Alaska 2013) (quoting In re Life Ins. Co. of Alaska, 76 P.3d 366, 368 (Alaska 2003)). [5]Thompson v. Thompson, 454 P.3d 981, 988-89 (Alaska 2019). [6]Gambini v. Hamilton, 440 P.3d 184, 189 (Alaska 2019) (quoting Tomal v. Anderson, 426 P.3d 915, 923 n.8 (Alaska 2018))......
  • Aubert v. Wilson, Supreme Court No. S-17573
    • United States
    • Supreme Court of Alaska (US)
    • 26 Marzo 2021
    ...distributes property to the decedent's heirs." Id. at 112.2 Kessler v. Kessler , 411 P.3d 616, 618 (Alaska 2018).3 Thompson v. Thompson , 454 P.3d 981, 988 (Alaska 2019) (quoting Engstrom v. Engstrom , 350 P.3d 766, 769 (Alaska 2015) ).4 Pasley v. Pasley , 442 P.3d 738, 744 (Alaska 2019) (q......
  • Wright v. Dropik, Supreme Court No. S-17769
    • United States
    • Supreme Court of Alaska (US)
    • 24 Junio 2022
    ...test.’ " (quoting Anchorage Chrysler Ctr., Inc. v. DaimlerChrysler Corp. , 129 P.3d 905, 916 (Alaska 2006) )); Thompson v. Thompson , 454 P.3d 981, 988 (Alaska 2019) ("Whether there are sufficient findings for informed appellate review is a question of law." (quoting Horne v. Touhakis , 356......
  • Request a trial to view additional results

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