as: 983 P.2d 1258)
Court of Alaska.
Joseph JORDAN, Appellant,
Evan JORDAN, Appellee.
July 30, 1999.
the Indian Child Welfare Act (ICWA), before a foster care
placement may be made in a case involving an Indian
child, the court must make a determination, supported by clear
and convincing evidence, including testimony of qualified expert witnesses, that
the continued custody of the child by the parent or
Indian custodian is likely to result in serious emotional or
physical damage to the child. Indian Child Welfare Act of
1978, § 102(e),
25 U.S.C.A. § 1912(e).
order for a non-parent to gain custody of a child,
the non-parent must prove either that the parent is unfit
or has abandoned the child or that the welfare of
the child requires that the non-parent be awarded custody.
determination of the acceptance of expert witnesses under the Indian
Child Welfare Act (ICWA) is reviewed for abuse of discretion.
Indian Child Welfare Act of 1978, § 102(e),
25 U.S.C.A. § 1912(e).
error in rejecting testimony of husband's expert witnesses was harmless
in child custody proceeding under Indian Child Welfare Act (ICWA),
where experts had no knowledge of Native wife's parental fitness,
or of services available to child in public schools of
wife's community, and thus testimony of experts could
not have assisted former husband in gaining custody. Indian Child
Welfare Act of 1978, § 102(e),
25 U.S.C.A. § 1912(e).
courts are vested with broad discretion in child custody matters.
Supreme Court will reverse a trial court's resolution of custody
issues only if it is convinced that the record shows
an abuse of discretion or if controlling factual findings are
to order wife to undergo substance abuse treatment as condition
of receiving custody of parties' child was not abuse of
discretion, where uncontroverted evidence indicated that wife had not had
any problem with alcohol in past year and that she
was an excellent parent.
due process clause of the State Constitution gives an indigent
parent, in some instances, the right to court-appointed counsel in
a child custody proceeding. Const. Art. 1, § 7.
was not indigent, and thus was not entitled to court-appointed
proceeding to determine custody of parties' child, where parties had
marital assets worth $200,000 to $300,000, and former husband was
given more than four months to liquidate assets in order
to hire private attorney. Const. Art. 1, § 7.
dissolution action, the trial court must apply Wanberg
factors and: (1) determine what assets are marital; (2) value
those assets; and (3) equitably divide those assets.
factors are not applied to settlement agreements entered into by
the parties to a marital dissolution.
as an agreement relates to the division of property, the
separation agreement should be controlling in the absence of fraud,
duress, concealment of assets or other facts showing that the
agreement was not made voluntarily and with full understanding.
could not protest trial court's acceptance of parties' property settlement
agreement, where husband's proposal formed template for agreement, and husband
received almost every single item of marital property he asked
Michael Joseph Jordan, pro se, Seward.
Mark Regan and James J. Davis, Jr., Juneau, and Robert
K. Hickerson, Anchorage, Alaska Legal Services Corporation, for Appellee.
Before MATTHEWS, Chief Justice, EASTAUGH, FABE, BRYNER, and CARPENETI, Justices.
This appeal arises from Michael and Lucy Jordan's divorce. The
superior court denied court-appointed counsel to Michael, awarded custody of
the couple's three children to Lucy, and accepted the couple's
property settlement agreement. Michael appeals these actions. We affirm.
FACTS AND PROCEEDINGS
Lucy and Michael Jordan were married in Lower Kalskag in
1983. The Jordans have two daughters and a son: daughters
J.J. (fifteen years old) and F.J. (twelve), and son S.J.
(thirteen). Lucy alleges that Michael beat her and attempted to
strangle her with a rabbit snare in January 1995. Michael
was convicted of first-degree assault for these attacks and is
presently serving an eight-year sentence at the Spring Creek Correctional
Center in Seward. Lucy filed a complaint for divorce in
Michael raises eight separate issues for review which this opinion
in four sections: (1) child custody issues; (2) denial of
counsel issues; (3) property settlement issues; and (4) sanctions under
Alaska Civil Rule 11. The specific procedural and factual history
of each of these claims, along with the standard of
review for each, will be discussed in its respective section.
Child Custody Issues
In early August 1995 the three children went to live
with Michael's brother and sister-in-law in North Carolina. S.J., the
son, was later sent to live with Michael's sister and
brother-in-law in Virginia. In February 1996 the court issued an
interim custody order giving custody of the girls to Lucy.
The girls returned immediately to Lower Kalskag. The court awarded
interim custody of S.J. to Michael with physical placement and
custody to remain with Michael's sister and brother-in-law in Virginia.
The court found that S.J.'s special academic, social, emotional, and
physical needs were being well addressed there. S.J. was to
spend the summers with Lucy and his sisters in Lower
When S.J. returned to Lower Kalskag for his 1996 summer
visit, Lucy filed a motion seeking to have S.J. stay
permanently. This motion was denied and S.J. returned to Virginia
for the school year.
After numerous delays, the Jordans' divorce went to trial on
February 10, 1997.
On February 3 Lucy, an Alaska Native, filed a pre-trial
memorandum seeking the immediate return of S.J. In this memorandum
she raised, for the first time, Indian Child Welfare Act
(ICWA) issues relating to S.J. living with non-Native, non-parent relatives
outside of Alaska.
25 U.S.C. §§ 1901-63.
The court issued its opinion and order on March 4,
1997. In that decree the court found, among other things,
that S.J. should "at least finish the school year [in
Virginia] before returning to Lower Kalskag." The decree provided that
S.J. would "return to Kalskag as soon as possible, consistent
with his best interests." The court rejected Lucy's ICWA argument,
stating that it was *1261
barred by equitable estoppel and waiver doctrines.
Lucy sought and was granted a petition for review from
this court. In an order dated June 5, 1997, we
vacated and remanded the case back to the superior court
and held that, with regard to the custody of S.J.,
the case was governed by ICWA and Turner
540 P.2d 1051 (Alaska 1975).
ICWA requires that, before a foster
care placement may be made in a
case involving an Indian child, the court must make "a determination,
supported by clear and convincing evidence, including testimony of qualified
expert witnesses, that the continued custody of the child by the parent
or Indian custodian is likely to result in serious emotional or physical
damage to the child." [FN3]
25 U.S.C. § 1912(e).
we held that for a non-parent to gain custody of a child, the non-parent--in
this case Michael's family--must prove either that the parent (Lucy) is
unfit or has abandoned the child or that the welfare of the child requires
that the non-parent be awarded custody.
540 P.2d at 1055.
A hearing on remand was held on August 22, 1997.
There Michael put on witnesses who testified to S.J.'s educational
progress, S.J.'s interaction with the village and his family, Lucy's
behavior as a parent and her recent drinking habits. On
September 24, 1997, the superior court ruled that Michael had
not met either the ICWA or Turner
burdens and ordered that S.J. stay in Lower Kalskag with
Lucy and not return to Virginia for the school year.
if the superior court should not have excluded Michael's expert
witnesses, any error was harmless.
argues that the court erroneously disregarded testimony of expert witnesses.
[FN5] The court stated that it rejected the proposed experts because:
(1) none of the witnesses presented evidence regarding Lucy's parental
fitness, nor had they had any contact with Lucy, thus, these experts would
not help Michael overcome his Turner
burden; and (2) none of the proposed experts was familiar with Native
or Yupik culture and thus would not qualify as ICWA experts.
The determination of the acceptance of expert witnesses under ICWA
is reviewed for abuse of discretion. See
Matter of Parental Rights of T.O.,
759 P.2d 1308, 1310 (Alaska 1988).
We have noted the following guidelines for the acceptance of
expert witnesses under ICWA:
Department of Interior issued Guidelines for State Courts, 44 Fed.Reg.
67583-95 (1979) (hereinafter Guidelines). Those applicable to 25 U.S.C. § 1912(f)
with the following characteristics are most likely to meet the
requirements for a qualified expert witness for purposes of Indian
A member of the Indian child's tribe who is recognized
by the tribal community as knowledgeable in tribal customs as
they pertain to family organization and childrearing practices.
A lay expert witness having substantial experience in the delivery
of child and family services to Indians, and extensive knowledge
of prevailing social and cultural standards and childrearing practices within
the Indian child's tribe.
A professional person having substantial
in the area of his or her specialty.
of Parental Rights of T.O.,
759 P.2d 1308, 1309 n. 3 (Alaska 1988) (emphasis added).
The superior court's ruling rejecting the witnesses as experts was
problematic. At least two of the witnesses, Burroughs and Cooke
Read, appeared to meet the third basis to qualify as
expert witnesses--"substantial education" in the field of their specialty--as both
had graduate degrees in their field of specialty. The superior
court appears to have ruled that because the proposed witnesses
did not meet the first two guidelines they were unqualified,
without considering the third guideline.
However, even if this exclusion was questionable, it caused no
harm, because the proposed experts had no knowledge of Lucy's
parental fitness, nor
the services available to S.J. in the Lower Kalskag public
schools. Therefore, given the high ICWA and Turner
barriers to gaining non-parental custody, the testimony, even if credited,
could not have led to S.J.'s removal from Lucy's custody.
Under these circumstances, even if it was technical error to
exclude the experts' testimony, it was harmless.
superior court did not abuse its discretion by failing to
order substance abuse counseling for Lucy as a condition of
Michael also contends that the
court erred because it did not order substance abuse counseling for Lucy
as a condition of custody. [FN6]
This argument is unavailing. The record does not show
that Michael ever asked that Lucy be required to undergo alcohol counseling
as a condition of custody. Furthermore, the court found "uncontroverted"
evidence that Lucy had not had any problem with alcohol in the past year
and that she was an excellent parent.
Trial courts are vested with broad discretion in child custody
Gratrix v. Gratrix,
652 P.2d 76, 79 (Alaska 1982). We will reverse a
trial court's resolution of custody issues only if we are
convinced that the record shows an abuse of discretion or
if controlling factual findings are clearly erroneous. See
Lucy was and still is represented by counsel. Michael was
originally represented by an attorney but contends that he ran
out of funds and thus was unable to continue to
afford counsel. On October 8, 1996, Michael, now pro
asserted that he was indigent and filed a motion for
appointment of counsel. Along with this motion, Michael filed a
financial statement which listed family assets of $212,000 and debts
of $36,000, for a total unencumbered net family worth of
The court denied Michael's motion for appointment of counsel, finding:
"Mr. Jordan is not indigent, on the face of his
financial statement. This court would consider motions to liquidate part
of the marital estate to allow Mr. Jordan to hire
an attorney." Michael asserts that he made a proposal to
liquidate assets on which the court never acted, but the
record does not support this assertion. Michael appeared pro
telephonically from Spring Creek, for the rest of the proceedings.
The assets listed on Michael's financial statement break out as
follows: (1) land, buildings, and trailers, $190,000; (2) motor vehicles,
$6,000; (3) snow machines and boats, $16,000.
This financial statement is less extensive and detailed than a
marital asset list and proposed property division sent by Michael
to Lucy's attorney on May 20, 1996. This letter became
the basis of the property settlement and is the only
detailed listing of the marital assets in the record.
The most valuable asset is the family home in Lower
Kalskag, which Michael valued at $118,000. Michael stated that he
built an apartment and a restaurant/grocery adjacent to the home
and he valued these buildings and fixtures at $94,000. Thus,
the total value of the Lower Kalskag property was $212,000.
Prior to the marriage, Michael acquired a one-half interest in
sixty acres of land in Copper Center. Michael stated that
the value of the one-half interest was $60,000 less a
$36,000 mortgage, for total equity of $24,000. It is not
clear if this land became part of the marital estate
or if the mortgage was paid out of marital funds,
but Michael listed it as marital property.
Therefore, the value of the Jordans' real property, by Michael's
own valuation, was $236,000.
While Michael was not required to list other personal property
and tools in the financial statement to the court, he
listed significant chattels in his letter to Lucy's attorney including:
$21,418 in household items, $2,594 in fishing gear and nets,
$2,200 in logging equipment and $16,730 in building materials. The
value of these additional assets totals $42,942.
Thus, a rough estimate of the value of the Jordans'
marital property, using Michael's valuations, was $300,942 ($236,000 real property,
plus $6,000 in motor vehicles, plus $16,000 in boats, plus
$42,942 in other assets, equals $300,942).
At the beginning of the trial on February 10, 1997,
Michael renewed his objections to proceeding without counsel and reiterated
that he was indigent. This objection was noted and denied,
the court finding that Michael had been given ample time
to liquidate assets to hire a lawyer.
superior court did not clearly err in determining that Michael
was not indigent.
It is well established that the
due process clause of the Alaska Constitution [FN7]
gives an indigent parent, in some instances, the right to court-appointed
counsel in a child custody proceeding.
[FN8] Because Michael was not indigent, however, he does not have
the right to court-appointed counsel.
[FN9] Indigency is defined in the Public Defender Agency statute
Alaska Const. art. I, § 7.
Flores v. Flores,
598 P.2d 893, 893-94 (Alaska 1979).
Since the determination of Michael's indigency is a factual question,
the superior court's decision is subject to the "clearly erroneous"
standard of review. See
Adrian v. Adrian,
838 P.2d 808, 811
(Alaska 1992); Alaska Rule of Civil Procedure 52(a) (a trial
court's factual findings "shall not be set aside unless clearly
erroneous"). To reverse such findings, we must be left with
"a definite and firm conviction on the whole record that
the judge made a mistake." Smith
673 P.2d 282, 283 (Alaska 1983) (citations omitted).
person" means a person who, at the time need is
determined, does not have sufficient assets, credit, or other means
to provide for payment of an attorney and all other
necessary expenses of representation without depriving the party or the
party's dependents of food, clothing, or shelter.... [FN10]
Given that the Jordans had $200,000
to $300,000 in marital assets, it would appear that sufficient assets
existed for Michael to pay for an attorney without encumbering the family
home. Michael was given ample opportunity to ask the court
to allow him to liquidate assets but he chose not to do so.
We have previously held: "Nonindigents who must pay for counsel
may choose to forego counsel because they believe that the
benefits of counsel's service are outweighed by its costs. The
fact that our market system forces nonindigents to
make such a choice has never been regarded as a
deprivation of the right to counsel...." [FN11]
899 P.2d 103, 112-13 (Alaska 1995).
The May 20, 1996 letter that Michael sent to Lucy's
attorney which listed, valued, and proposed a division of the
marital property became the starting point for the ultimate voluntary
settlement entered into at trial. At trial, this letter was
entered into evidence. This agreement was memorialized in the Findings
of Fact and Conclusions of Law issued by the court
on May 30, 1997. The settlement was quite similar to
that proposed in Michael's letter and much of it was
negotiated on the record. The settlement's main points are that
Lucy received the bulk of the marital property, including the
Lower Kalskag home. Michael received the Copper Center land, a
boat, a truck, logging equipment, construction and welding equipment, tools,
all of his personal property, and miscellaneous other items.
superior court did not err in accepting the Jordans' property
now protests this property settlement. Michael's principal
argument is that the court erred by not (1) determining what assets are
marital; (2) valuing those assets; and (3) equitably dividing
the assets. This three-step process has become known as applying
664 P.2d 568, 570 (Alaska 1983).
Michael misconstrues the
law. The Wanberg
factors are not applied to settlement agreements. Instead,
we have held that "insofar as an agreement relates to the division
of property, the separation agreement should be controlling in the absence
of fraud, duress, concealment of assets or other facts showing that the
agreement was not made voluntarily and with full understanding."
Michael does not make such a showing. Indeed, that argument would
be nonsensical, since his May 20, 1996 letter formed the template for
the final agreement, and his vigorous negotiations during [FN14]
and after [FN15]
the trial were almost entirely successful.
921 P.2d 1109, 1111 (Alaska 1996) (quoting Kerslake
609 P.2d 559, 560 n. 1 (Alaska 1980) (internal quotation
At one point in the trial, Michael interrupted Lucy's testimony
to "get to the bottom line: Am I going to
be able to have my property [the Copper Center land]?"
He obtained that property, then commenced an on-the-record negotiation, in
which he obtained every item of property he sought. Over
the next two days, the negotiations continued outside of court
and were reported by counsel and Mr. Jordan to the
court each day. They ended with agreement on "the final
outstanding issue in the property part of this case."
The superior court noted in the Findings of Fact and
Conclusions of Law that "[a]fter the trial [Michael] contacted [counsel
for Lucy] and stated that there were other items, marital
and otherwise, that he wanted to be awarded." Lucy agreed
to all but certain of the requested items. These concessions
were wrung after Michael agreed on the record to have
reached "final" agreement with Lucy as to property.
For these reasons, the superior court did not err in
enforcing the property settlement agreement.
Civil Rule 11 Sanctions
Michael asserts that Civil Rule 11 [FN16]
sanctions should be imposed upon Lucy's attorney for two contacts
he had with persons outside of the court.
But Michael's assertions do not bring these matters within the
purview of Rule 11, which governs pleadings, motions, and other
papers filed with the court. Michael's allegations, if true, may
be brought to the attention of the Alaska Bar Association.
But they are collateral to this appeal and do not
form a basis for overturning any action of the superior
court in resolving this case.
Civil Rule 11 provides, in part:
pleading, motion and other paper of a party represented by
an attorney shall be signed by at least one attorney
of record in the attorney's individual name.... The signature of
an attorney or party constitutes a certificate by the signer
that ... to the best of the signer's knowledge, information,
and belief formed after reasonable inquiry it is well grounded
in fact and is warranted ..., and that it is
not interposed for any improper purpose, such as to harass
or to cause unnecessary delay or needless expense in the
cost of litigation.
We AFFIRM the superior court's decisions in declining to appoint
counsel for Michael, in awarding custody, and in accepting the
couple's property settlement agreement.