Wells v. Barile

• Decision Date: 16 October 2015
• Docket Number: No. S–15590.,S–15590.
• Citation: 358 P.3d 583
• Parties: Tammy S. WELLS, Appellant, v. Primo J. BARILE, Appellee.
• Court: Alaska Supreme Court

358 P.3d 583

Tammy S. WELLS, Appellant

v.Primo J. BARILE, Appellee.

No. S–15590.

Supreme Court of Alaska.

Oct. 16, 2015.

Tammy Wells, pro se, Palmer, Appellant.

Primo Barile, pro se, Palmer, Appellee.

Before: FABE, Chief Justice, WINFREE, STOWERS, MAASSEN, and BOLGER, Justices.

OPINION

MAASSEN, Justice.

I. INTRODUCTION

Tammy Wells appeals the superior court's grant of a motion to modify child custody filed by her former husband Primo Barile. Tammy also challenges the court's child support order, its order that she reimburse Primo for half their child's Permanent Fund Dividends (PFDs), and a writ of assistance the court issued for the custody order's enforcement. She also alleges that several of the superior court's rulings show judicial bias and a failure to give her the leniency appropriate to her status as a pro se litigant.

We conclude that the superior court abused its discretion when it ordered Tammy to reimburse Primo for the PFDs without taking into account, as an offset, the amounts that Primo may have owed Tammy for medical care. We reverse the judgment on this issue and remand for further proceedings. On all other issues we find no error and affirm.

II. FACTS AND PROCEEDINGS

Tammy Wells and Primo Barile married in 1995 and divorced in 2004. They have a son, born in 1997. Tammy married Lance Wells after her divorce from Primo and has two children with Lance.

Tammy and Primo shared physical custody of their son on a “50/50 basis” pursuant to an order entered in January 2009.¹ Neither parent was required to pay child support to the other. The 2009 order required Tammy to apply for their son's PFDs but divide them equally with Primo. The order also required the parents to keep their son on their health insurance as long as it was available at reasonable cost through their employers, and to share the cost of any reasonable health care expenses not covered by insurance, up to a maximum of $5,000 annually.

A. Lance's Motion To Modify Custody

Tammy and Lance divorced in 2013. The permanent custody order entered in their divorce provided for joint legal and shared physical custody of their two children. Lance moved to modify custody in early 2014, seeking primary physical and sole legal custody. After holding an interim hearing in February, Superior Court Judge Kari Kristiansen found a substantial change in circumstances and granted Lance's motion. As relevant here, Judge Kristiansen found “more than ample evidence” that Tammy “present[ed] a danger to the minor children based on threats of self-harm and substance abuse, and leaving the children unattended.” She ordered that Tammy undergo a complete psychological evaluation and have only supervised visitation with the children.

B. Primo's Motion To Modify Custody

In November 2013 Primo had moved to modify the 2009 custody order from his and Tammy's divorce, arguing that Tammy's recent divorce from Lance, her abandonment of their son while she traveled to Costa Rica on a humanitarian mission, and their son's worsening grades at school constituted a substantial change in circumstances. Primo sought sole legal and primary physical custody, with Tammy's visitation limited to “[e]very other weekend until [she] has a stable emotional, financial and home life.” Primo did not ask for child support, but he did ask that Tammy reimburse him for half of their son's yearly PFDs as required by the 2009 order.

Tammy opposed Primo's motion. She contended that his allegations of a substantial change in circumstances relied largely on inadmissible hearsay. She denied abandoning their son for her trip to Costa Rica, asserting that she left him temporarily in Lance's care, with Primo's knowledge, so that he could continue attending the same high school as his half-brother. She also asserted that their son's difficulties with school were unrelated to the custody situation. She contended that Primo had agreed to pay for their son's braces, and she denied owing Primo his share of the child's PFDs because she had used it to pay for the braces—an expense the parties were required to split evenly under the terms of the 2009 order.

In his reply Primo asked the superior court to consider the findings made on Tammy's emotional health in the proceedings involving her divorce from Lance.

In March 2014 Superior Court Judge Vanessa White held an evidentiary hearing on Primo's motion to modify custody. Both Primo and Tammy represented themselves, and they both presented witnesses. Of relevance here, Primo called Lance, who testified about Judge Kristiansen's findings on his motion to modify custody in the separate divorce proceeding. Judge White questioned Primo and Tammy's son on the record but outside the presence of his parents, where he testified that he would prefer to live with his mother.

Following the hearing, the superior court made extensive oral findings. It granted Primo's motion to modify custody, awarding him sole legal and primary physical custody of the parties' son, with Tammy having visitation every other weekend. It found a substantial change in circumstances based on the child's poor academic performance while in Tammy's care, Tammy's decision to leave for Costa Rica at a time when her son was on academic probation, and Tammy's emotionalism and threats of self-harm.

In making its findings on Tammy's emotional state, the superior court cited Judge Kristiansen's interim order in Tammy and Lance's divorce, stating that because it was “fairly contemporaneous in time” she was “very confident in finding ... that Lance Wells [had] testified consistently in both proceedings,” and she found Lance's testimony to be “extremely credible.” The superior court also found Primo's testimony credible, but it did not credit Tammy's testimony because she was “all about denial and not about accepting any responsibility.” The court found the child's testimony credible but found that he was “in a slightly parentified relationship with his mom,” and also that his preference for his mother was motivated partly by the difference in discipline between the two households. The superior court declined to give collateral estoppel effect to Judge Kristiansen's findings on Tammy's emotional state, but it concluded, as Judge Kristiansen had, that Tammy “presents a risk of emotional harm to the children and demonstrates a significant degree of instability.”

The superior court also issued a tentative child support order pending an opportunity for the parties to weigh in on whether the court should impute income to Tammy. As for Tammy's use of the PFDs, the superior court ordered her to submit documentation to support her claim that she had used Primo's half of the funds to help pay for her son's braces.

Tammy filed a “notice of compliance” along with documents showing her payment of the orthodontic bills. She noted that the braces cost $5,600 and that half of their son's PFDs for the years 2010 to 2013 was $2,116.50, leaving $683.50 that Primo still owed for his half of the braces' cost. In response Primo argued that orthodontic work was not medically necessary, that he had never agreed to help pay for it, and that the 2009 order gave Tammy no discretion as to whether she should turn over half the PFDs to him.

C. The Superior Court's Writ Of Assistance And Tammy's Motion For Reconsideration

In April 2014 Primo moved that Tammy's visitation be supervised and asked for a writ of assistance to enforce the custody order. He alleged that Tammy was encouraging their son to run away during Primo's custody time and was supporting his delinquency from school. The superior court issued the requested writ, which provided that “[a]ny peace officer to whom this Writ is delivered is authorized to assist” Primo in enforcing the custody order. The writ stated that Tammy had “refused and/or failed to obey [the custody order] and is harboring and supporting a child that is listed and regarded as a ‘runaway’ in the eyes of the law.”

Tammy moved for reconsideration of the superior court's custody order and challenged the writ of assistance based on false premises. The court denied the motion for reconsideration but reserved for hearing Tammy's challenge to the writ. It scheduled a show-cause hearing on several issues: Tammy's failure to submit the necessary income information for the calculation of her child support obligation, her failure to pay half of the PFDs to Primo, and her challenge to the writ of assistance.

D. The Show–Cause Hearing

The show-cause hearing was held in June 2014. After hearing from both parties, the court ordered that Tammy submit her 2013 tax return by the end of the week or be found in contempt; that Tammy reimburse Primo for half of their son's PFDs for the years 2010 through 2013; and that the writ of assistance required no modification or clarification. In July the superior court signed a judgment against Tammy in the amount of $2,407.44, reflecting half of the PFDs for four years plus prejudgment interest on that amount.

Tammy raises 16 issues on appeal, but we group her arguments as follows: that the superior court (1) erred by granting Primo's motion to modify custody; (2) erred by ordering Tammy to pay child support when Primo had not requested it; (3) erred by ordering Tammy to reimburse Primo for half of their son's PFDs; (4) erred by issuing the writ of assistance; (5) displayed judicial bias; and (6) failed to apply the less stringent procedural standards to which pro se litigants are entitled. Primo's single-page brief argues simply that this custody case is now moot because the parties' son turned 18 in March 2015, while the appeal was in the briefing stage.

III. STANDARD OF REVIEW

We review the superior court's custody determination for abuse of discretion.² “An abuse of discretion occurs when the superior court considers improper factors in making its custody determination, fails to consider statutorily mandated factors, or assigns disproportionate weight to particular factors while ignoring others.”³ “We apply de...