CourtListener opinion 11102712

Evidence quotes

Clean opinion text

NOTICE
 Memorandum decisions of this court do not create legal precedent. A party wishing to cite
 a memorandum decision in a brief or at oral argument should review Appellate Rule 214(d).

 THE SUPREME COURT OF THE STATE OF ALASKA

ANDREW M. PODEMS, )
 ) Supreme Court No. S-15242
 Appellant, )
 ) Superior Court No. 3PA-11-02117 CI
 v. )
 ) MEMORANDUM OPINION
MICHELE L. PODEMS, ) AND JUDGMENT*
 )
 Appellee. ) No. 1492 - April 9, 2014
 )

 Appeal from the Superior Court of the State of Alaska, Third
 Judicial District, Palmer, Gregory Heath, Judge.

 Appearances: Andrew Podems, pro se, Newton, New Jersey,
 Appellant. Michele Podems, pro se, Union, New Jersey,
 Appellee.

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

Introduction
 This appeal arises from Andrew and Michele Podems's divorce. Although
they each had an attorney in the superior court, they appear in this appeal proceeding
pro se. Andrew challenges the superior court's: (1) visitation order for him and his
child; (2) determination that certain property was not marital; (3) denial of discovery

 * Entered under Alaska Appellate Rule 214.
 sanctions; and (4) denial of his requests for specific spousal support and payment of
attorney's fees.
Custody
 Andrew and Michele married in New Jersey in 1999. In 2001 they moved
to Alaska. They have a child, born in 2009, who has special needs. Andrew filed for
divorce in August 2011.
 Under interim orders Michele had primary custody and Andrew had limited
supervised visitation rights. Michele had permission to move back to New Jersey with
the child. Michele did move to New Jersey before trial; the parties appear to have
understood that Andrew would be following shortly because at trial the visitation
testimony was based on whether it would be feasible for the child to spend every other
week with Andrew's mother in New Jersey. Shortly after the trial but before the superior
court entered its decision, Andrew moved to New Jersey.
 The court ultimately awarded Michele sole legal and primary physical
custody of the child and provided Andrew limited supervised visitation that could be
expanded to unsupervised visitation and monthly overnight visits if Andrew met certain
conditions relating to his mental health. The court also noted that a 50/50 custody
schedule was not appropriate because the child "lives in a different school district than
Andrew and . . . has special needs." Andrew does not challenge the award of sole legal
and primary physical custody to Michele, but does challenge the order for supervised
visitation.1
 When a court orders supervised visitation, it must support this order with
findings that " ‘specify how unsupervised visitation will adversely affect the child's

 1
 To the extent Andrew may be challenging the interim orders, we do not
address those orders, but limit our review to the final order.

 -2- 1492
 physical, emotional, mental, religious, and social well-being.' "2 We " ‘prefer that a
court ordering supervised visitation also specify a plan by which unsupervised visitation
can be achieved.' "3 The court provided such a plan when it ordered that Andrew could
have unsupervised visitation after six months if he were "actively engaging in mental
health counseling and following a treatment plan recommended by his provider." This
also informs us why the superior court concluded that unsupervised visitation is not in
the child's interests — the superior court was concerned about how Andrew's mental
health issues could affect the child.
 Sufficient testimony supported the court's concern. Michele testified that
she was concerned about Andrew's mental state when he threw her parents out of the
house for speaking Polish, which was against the rules he set for them. A witness
testified that Andrew was unpredictable and would use a gun to get attention. The same
witness described an incident that took place shortly after Michele gave birth to the child,
when Andrew picked up a wooden rocking chair and threatened to throw it on the
ground because he was angry about Michele's parents. The witness compared Andrew
to the mentally ill people she worked with as a registered nurse, and when asked if she
was concerned about his mental health, she stated that she was "very much so." There
was also testimony that on several occasions when Andrew was changing the child's
diaper, Andrew jokingly laid the child on the floor and called the dog over to clean him.
Andrew expressly asserted in his trial brief that he suffers from hypertension, anxiety,
and depression, as well as various physical issues; and he testified that he has anxiety,
posttraumatic stress disorder, and depression for which he previously was taking

 2
 Fardig v. Fardig, 56 P.3d 9, 14 (Alaska 2002) (quoting J.F.E. v. J.A.S., 930
P.2d 409, 413-14 (Alaska 1996)).
 3
 Id. at 14-15 (quoting Monette v. Hoff, 958 P.2d 434, 437 (Alaska 1998)).

 -3- 1492
 medication. In an earlier order denying Andrew's various motions the superior court
noted observing Andrew's "erratic" and "odd emotional behavior" in court.
 After reviewing the record, we see no abuse of discretion in the superior
court's visitation order; we therefore affirm it. Andrew may seek modification of the
custody and visitation orders as he deems appropriate in New Jersey.4
New Jersey Condominium
 Prior to and for about two years after Andrew and Michele married, before
moving to Alaska, they lived in a New Jersey condominium residence jointly owned by
Michele's parents, Michele's brother, and Michele. Andrew contended at trial that the
condo was marital property. This generated a discovery dispute when Michele did not
produce records from her father's bank account for the condo, which had been made a
joint account with Michele. But the account documents were produced for trial, and
Michele's mother was available to testify about the family's purchase of the condo with
the children's names on the title for estate planning purposes. Because the information
was provided for trial, we conclude that the superior court did not abuse its discretion in
not sanctioning Michele for the delay in production. And because the testimony at trial
regarding Michele's parents' purchase and use of the condo supports the superior court's
determination that Michele's interest in the condo was pre-marital and had not been
transmuted into marital property, we conclude that the superior court did not err in its
decision that Michele's interest in the condo was not marital property.

 4
 The superior court should consider transferring any pending custody
proceedings to New Jersey, where both parties and the child now reside. See
AS 25.30.310 (Uniform Child Custody Jurisdiction and Enforcement Act).

 -4- 1492
 Spousal Support
 Andrew asserts that the superior court erred in not ordering Michele to pay
his first and last month's rent for housing directly to him after he left the family
residence. When ordering Andrew to leave the family residence, the superior court
ordered Michele to find housing for Andrew and to pay his first and last month's rent.
Michele did so, but Andrew decided he preferred to live elsewhere. Michele was able
to get the money she had paid for the apartment refunded, and Andrew then requested
that Michele reimburse him for his first and last month's rent at his new housing.
Michele contended she paid Andrew spousal support and gave him an additional $400,
and Andrew also subsequently took substantial funds from a joint bank account. The
superior court determined that Michele already had satisfied her obligation, and we
conclude that the superior court did not abuse its discretion in not ordering Michele to
give Andrew additional funds for rent and spousal support.
Attorney's Fees
 Andrew asserts that the superior court erred by not ordering Michele to pay
some of his attorney's fees. Andrew sought to have Michele pay for his attorney early
on, but the superior court denied that motion. Andrew also twice requested attorney's
fees as part of motions to show cause, but the superior court rejected those motions as
well. The court noted that Andrew's attorney "cited no authority for granting his request,
nor elaborated on why attorney's fees should be awarded." And, his earlier requests
notwithstanding, Andrew's trial brief stated his position that the parties should bear their
own attorney's fees, which is what the trial court ultimately ordered. We therefore do
not address this issue.

 -5- 1492
 Michele's $25,000 Loan
 Andrew also asserts that it is unfair that Michele used marital assets for her
attorney's fees, and contends he should be placed in the same position. This assertion
was not specifically raised in the superior court, and with one limited exception, we do
not address it here. The exception is Michele's $25,000 post-separation loan against her
retirement account. Michele testified that she used the loan to pay her legal expenses and
that she used some of it to repair the family home for sale.
 The court divided the retirement account 50/50 with the apparent
expectation that a qualified domestic relations order would be submitted to effectuate the
division. Although not entirely clear, we assume from the lack of findings and analysis
to the contrary that the superior court determined Michele's post-separation loan was
separate debt. We are unable to find a qualified domestic relations order in the record
before us, and therefore are unable to determine whether the actual division of the
retirement account will be accomplished in a manner ensuring that any security or
repayment obligation for Michele's loan is limited to her half of the retirement account.
We therefore remand for the superior court to conclude the division of the retirement
account with an appropriate order.
Conclusion
 Based on the foregoing, the superior court's decision is AFFIRMED. We
REMAND for the superior court to finalize the division of Michele's retirement account
as noted.

 -6- 1492