author: HILL, Chief Justice.

text:
    2003 WY 37
    Jennifer Lynn MEADOWS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). Charles David Furman, Appellant (Defendant), v. The State of Wyoming, Appellee (Plaintiff).
    Nos. 01-241, 01-242.
    Supreme Court of Wyoming.
    March 13, 2003.

      Mary Guthrie, Cheyenne, Wyoming, Representing Appellant Jennifer Lynn Meadows.
    Kenneth M. Koski, State Public Defender; Donna Domonkos, Appellate Counsel; Diane E. Courselle, Director, Defender Aid Program; and Tracy Lynn Stewart, Student Intern., Representing Appellant Charles David Furman. Argument presented by Ms. Cour-selle.
    Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and T. Alan Elrod, Assistant Attorney General, Representing Appellee. Argument presented by Mr. Elrod.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   HILL, Chief Justice.

[¶ 1] Charles David Furman (Furman) and Jennifer Lynn Meadows (Meadows) (collectively Appellants) each entered conditional guilty pleas pursuant to W.R.Cr.P. 11(a)(2) to one count of knowingly or intentionally possessing a controlled substance in excess of three grams in violation of Wyo. Stat. Ann. § 35-7-1031(c) (LexisNexis 2001), a felony pursuant to § 35 — 7—1031(c) (ii). Appellants’ guilty pleas were conditioned on this appeal of the district court’s denial of their motions to suppress.

[¶ 2] We affirm.

ISSUES

[¶ 3] In Case Number 01-242, Furman presents a single issue for review:

The continued detention of Charles Fur-man exceeded the scope of a permissible Terry stop which tainted the subsequent consent to search; hence, any evidence recovered was the “fruit of a poisonous tree” and should have been suppressed.

In Case Number 01-241, Meadows offers two issues for consideration:

I. Whether the trial court erred in denying Meadows’ motion to suppress incul-patory evidence which was seized when the lawful scope of the traffic stop was exceeded.
II. Whether the trial court erred in denying Meadows’ motion to suppress in-culpatory evidence because consent to search the automobile was not voluntarily given.

The State’s statement of the issue is substantially identical in each case:

Did the district court properly deny Appellant’s motion to suppress evidence resulting from the consensual search of the vehicle he (she) was driving (riding)?

FACTS

[¶4] On July 25, 2001, Wyoming Highway Patrolman Earl Gill stopped a vehicle on Interstate 90 near Moorcroft, Wyoming for going 100 M.P.H. in a 75 M.P.H. zone. Fur-man was driving and Meadows was a passenger in the vehicle. Furman identified himself as Peter Benjamin Maxwell but could not produce a driver’s license or any other form of identification, vehicle registration, or proof of insurance. Initially, Furman told the trooper he had identification in the back of the vehicle. After the trooper told Furman that he could wait while the identification was retrieved, Furman claimed he had left his wallet in Montana at his girlfriend’s sister’s home. Later, Furman indicated that the Montana police had taken his license after issuing him a speeding citation. Indeed, the only information regarding his identity that Furman provided to the trooper was a Montana speeding citation in the name of Peter Benjamin Maxwell, issued four days earlier.

[¶ 5] Furman told the trooper that the car belonged to his brother, Philip Albright. Dispatch was able to confirm that the car was registered to a Philip Albright in Gold-bar, Washington.

[¶ 6] After dispatch could not confirm the existence of a driver’s license in Montana for a Peter Benjamin Maxwell, the trooper had Furman write his name, date of birth, and address on a piece of paper as it appeared on his license. On the paper, Furman indicated an Auburn, Washington address. Dispatch initially was unable to locate a Washington license with the information provided by Fur-man. Trooper Gill informed him that without computer verification of his identity, Fur-man would have to provide a $200 cash bond for his speeding ticket. Furman indicated that he did not have that much cash and did not have an ATM card so he could not access any cash either.

[¶ 7] By this time, Wyoming Highway Patrol Trooper Hunt had arrived on the scene and after obtaining identification from Meadows, the troopers retired to Gill’s patrol ear. The officers concluded that Meadows had provided false identification because the photograph bore no resemblance to her at all.

[¶ 8] Dispatch was ultimately able to locate the record of a Peter Benjamin Maxwell whose license, however, listed a Seattle, not an Auburn, address. When Trooper Gill approached him about the address discrepancy, Furman stated that he had lived in Seattle but now resided in Auburn and indicated that he did not know which address was actually on his license. However, when asked about his former residence in Seattle, Furman gave a different street address than that appearing on the Washington license.

[¶ 9] The two troopers then separately questioned Furman and Meadows about their travel plans. Furman indicated that they were on their way from Washington to his father’s funeral in Ohio after stopping in Montana to see Meadows’ sister. Meadows confirmed that they were going to Ohio for a funeral and also said that they planned to stop in Oshkosh on the way. When asked if they planned to stop anywhere on the way to Ohio, Furman replied, “No.” The troopers had dispatch attempt to contact the sister in Montana through a telephone number given by Appellants. No one was present at the number but an answering machine stated that the number was for a pawnshop.

[¶ 10] Trooper Gill proceeded to issue Furman three citations. He asked if there were any drugs, weapons, or large sums of currency in the car. Furman denied the presence of any of those items. Trooper Gill then asked if he could search the vehicle. Furman asked if he would be taken to jail if he refused. Trooper Gill said, “No,” and Furman then denied permission. In response, Trooper Gill informed Furman that before he could leave, a canine unit was going to be brought to the scene. Wfiiile the trooper returned to his patrol vehicle, Fur-man leaned into his car and appeared to have a brief conversation with the passenger. Furman then approached Trooper Gill and gave his consent for a search of the vehicle. The search disclosed the presence of various items in the vehicle’s trunk consistent with the manufacturing of methamphetamine. Accordingly, Furman and Meadows were arrested.

[¶ 11] Separate Informations were filed against Furman and Meadows charging each of them with one count of misdemeanor interference with a peace officer in violation of Wyo. Stat. Ann. § 6-5-204(a) (LexisNexis 2001) and one count of either knowingly possessing a List I or II controlled substance precursor with the intent to engage in a clandestine laboratory operation in violation of Wyo. Stat. Ann. § 35-7-1059(a)(i) (Lexis-Nexis 2001) or conspiring with or aiding another to engage in a clandestine laboratory operation in violation of § 35-7-1059(a)(iv).

[¶ 12] Furman and Meadows each filed a motion to suppress the evidence found in their vehicle. They contended that Trooper Gill did not have a reasonable suspicion of illegal activity or probable cause to detain them after the traffic citations were issued, and that Furman’s consent to search the vehicle was not voluntary. After a hearing on the motions, the district court issued an order denying them. The court concluded that there were reasonable, articulable suspicions for the continued detention of the Appellants after the completion of the traffic citation process. The district court cited the complete lack of identification by the driver, and for the vehicle, coupled with the obvious heavy load in the trunk, Furman’s inability to provide a coherent account of where he lived, Furman’s nervousness, and the conflicting statements from Furman and Meadows about their destination.

[¶ 13] The Appellants subsequently entered into a plea agreement whereby they pleaded guilty to one count of knowingly or intentionally possessing a controlled substance in excess of three grams in violation of Wyo. Stat. Ann. § 35 — 7—1031(c)(ii) in exchange for the State dropping the other charges against them. Appellants’ guilty pleas were conditioned on this appeal of the district court’s denial of their motions to suppress.

STANDARD OF REVIEW

[¶ 14] We have reiterated our standard for reviewing a trial court’s ruling on a motion to suppress numerous times:

We generally do not disturb evidentiary rulings made by a trial court unless the trial court abused its discretion. Wilson v. State, 874 P.2d 215, 218 (Wyo.1994). In reviewing a trial court’s ruling on a motion to suppress evidence, we do not interfere with the trial court’s findings of fact unless the findings are clearly erroneous. Geh-nert v. State, 956 P.2d 359, 361 (Wyo.1998). We view the evidence in the light most favorable to the trial court’s determination because the trial court has an opportunity at the evidentiary hearing to assess “the credibility of the witnesses, weigh the evidence, and make the necessary inferences, deductions, and conclusions.” Id. The constitutionality of a particular search or seizure is, however, a question of law that we review de novo. Id., Jones v. State, 902 P.2d 686, 690 (Wyo.1995).

Putnam v. State, 995 P.2d 632, 635 (Wyo. 2000) (quoting Burgos-Seberos v. State, 969 P.2d 1131, 1133 (Wyo.1998)).

[¶ 15] Prior to our discussion of Appellants’ claims, we must address an issue raised by Furman relating to our standard for reviewing the videotape of the traffic stop. In addition to the testimony of Trooper Gill at the suppression hearing, the district court also reviewed the videotape of the stop, which was recorded from a camera inside the trooper’s patrol vehicle. The district court’s ultimate decision denying the motions to suppress was based upon its review of that videotape in conjunction with the testimony from the hearing.

[¶ 16] On appeal, Furman contends that we should review the videotape de novo since the credibility of Trooper Gill is not directly at issue through such a review. He suggests that if the videotape conflicts with the trooper’s testimony or any of the trial court’s findings, then this Court should “independently assess the weight and credibility that should be given to each” piece of evidence. Furman cites State v. Binette, 33 S.W.3d 215 (Tenn.2000) in support of the use of a de novo standard of review. However, the Kansas Court of Appeals has pointed out the flaw of relying on that case:

Freel cites State v. Binette, 33 S.W.3d 215 (Tenn.2000) to support his assertion that this court should use a de novo standard of review in evaluating the trial court’s refusal to suppress the evidence. In Binette, the review was de novo because the arresting officer did not testify at trial; however, there was a videotape of the incident. The Tennessee Supreme Court held that when a court’s findings of fact at a suppression hearing are based solely on evidence that does not involve issues of credibility, such as a videotape, the rationale underlying a deferential standard of review is not implicated. Thus, a de novo standard of review was found to be appropriate; however, this holding was expressly limited to the facts presented. 33 S.W.3d at 217.
The facts in the instant case differ from Binette. Here, the evidence included the videotape and the officers’ testimony; therefore, we turn to the established standard of review for the suppression of evidence.

State v. Freel, 29 Kan.App.2d 852, 32 P.3d 1219, 1223 (2001). Similarly, in this case, we have the testimony of the officer in addition to the videotape. Accordingly, we will apply our established standard of review as noted above.

DISCUSSION

Investigatory Detention

[¶ 17] An investigatory or Terry stop represents a seizure which implicates the Fourth Amendment, requiring the presence of specific, articulable facts and rational inferences giving rise to a reasonable suspicion that a person has committed or may be committing a crime. Wilson v. State, 874 P.2d 215, 219-220 (Wyo.1994) (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)); see also McChesney v. State, 988 P.2d 1071, 1074 (Wyo.1999). There is a dual inquiry for evaluating the reasonableness of an investigatory stop: (1) whether the officer’s actions were justified at the inception; and (2) whether it was reasonably related in scope to the circumstances which justified the interference in the first instance. Wilson, 874 P.2d at 223 (quoting United States v. Hensley, 469 U.S. 221, 228, 105 S.Ct. 675, 680, 83 L.Ed.2d 604 (1985) and Terry, 392 U.S. at 20-21, 88 S.Ct. at 1879). The conduct of an officer is judged by an objective standard which takes into account the totality of the circumstances. Terry, 392 U.S. at 21-22, 88 S.Ct. at 1879-81; United States v. Lang, 81 F.3d 955, 965 (10th Cir.1996).

Putnam, 995 P.2d at 637. Appellants concede the validity of the initial stop. Their focus is on the detention subsequent to the issuance of the traffic citations.

[¶ 18] Once the initial reason for a stop has been resolved, an officer must have specific, articulable facts and rational inferences giving rise to a reasonable suspicion that another crime has been or is being committed to justify a continued detention. United States v. McRae, 81 F.3d 1528, 1534 (10th Cir.1996). Appellants contend that the district court erred in concluding that Trooper Gill had specific, articulable facts supporting a reasonable suspicion justifying their continued detention after the traffic citations were issued. Initially, Appellants take issue with the court’s conclusion that there was a “total lack of identification” on Furman and the vehicle. They note that dispatch confirmed a Washington driver’s license in the name given by Furman and that the car was owned by the person identified by him. Appellants insist that the confirmation by dispatch was sufficient to dispel any suspicions. They also claim that Furman did not have trouble telling Trooper Gill where he lived he consistently indicated that he resided in Auburn, Washington and that the officer was merely confused because the address on the driver’s license identified by dispatch was an old one. Appellants attack the relevance and weight of the officer’s observations that their car’s trunk appeared to be weighted down by pointing out that they were on a long distance trip, so it was reasonable to assume that the weighted trunk was the byproduct of their luggage. Accordingly, they contend that the court should have given the officer’s observations little, if any, weight. They also insist that they offered substantially similar descriptions of their destination, and that Trooper Gill failed to ask any clarifying questions to resolve the apparent minor discrepancies he perceived. Finally, Furman contends that he was not abnormally nervous during the stop and that there is no evidence from the videotape supporting an assertion that he was. Ultimately, Furman concludes that even if the factual conclusions of the district court were correct, they nevertheless did not support a finding of a reasonable suspicion that Appellants were engaged in the trafficking of illegal drugs, and that their detention based on Trooper Gill’s decision to call a canine unit was illegal.

[¶ 19] Our review of the record leads to the conclusion that Trooper Gill possessed reasonable articulable suspicions justifying the continued detention of Furman and Meadows. The following facts may be discerned from the transcript of the suppression hearing and the videotape of the traffic stop: (1) The driver of the vehicle, Furman, did not possess a driver’s license or proof of insurance in violation of Wyoming law (see Wyo. Stat. Ann. §§ 31-7-116 and 31-4-103(a) & (b) (LexisNexis 2001)); (2) Furman offered several different explanations about where his wallet containing his driver’s license was, varying from the backseat of the car to Meadows’ sister’s home in Montana to a claim that the Montana police had taken it after issuing him a speeding ticket; (3) The address given by Furman was for an Auburn, Washington residence but the driver’s license located by dispatch bore a Seattle, Washington address; (4) Furman indicated that he had lived in Seattle but when asked, gave a different address than that appearing on the driver’s license; (5) Meadows proffered a driver’s license that the officers believed was not hers because of the substantial physical differences between the photograph on the license and Meadows’ appearance; (6) Fur-man identified the owner of the vehicle as his brother although that person bore a different surname; (7) Furman was ostensibly traveling cross-country, but he was not carrying any cash or an ATM card; (8) Furman and Meadows agreed that they were traveling to Ohio for the funeral of Furman’s father but disagreed on their itinerary; (9) the vehicle appeared to be heavily weighted in the trunk area; and (10) Furman appeared to be abnormally nervous, as described by Trooper Gill:

He seemed basically to try to avoid some of the questions I had asked him. Also I noticed right away he was about four or five times his body movement and his speech was a lot faster than normal. At one point I considered the fact that he was probably taking some type of illegal narcotics because his speech and behavior was just entirely too fast. He was extremely hyper, and that stayed throughout the course of the time I had dealt with him.
There was [sic] just a couple times if I would ask him a question, his speech would change. He’d hum a lot. And he could answer me, maybe a question. It was just the way he was doing it. The speech alone was entirely too fast. He was humming, making a lot of gestures, but he wasn’t saying either yes, no, giving me a straight answer, I guess.
He his behavior was just from the very beginning he was extremely fast in what he was doing. He bounced around too much. His behavior was just a little bit different as compared to when I stop people on the highway and they are nervous because they just got stopped. I’ve never stopped before, you know, a person who isn’t a little bit nervous. But when they’re answering questions when I’d ask him questions he stuttered. He bounced around. His behavior was just totally different. It’s hard to describe, but he was just moving in a really fast world.

[¶20] Each of these facts considered in isolation could be construed as the innocent behavior of cross-country travelers. However, we must look at the circumstances in their entirety and when we do so, factors that could be indicative of innocent behavior, if considered in isolation, may well support a reasonable suspicion of illegal activity when considered in totality. Putnam, 995 P.2d at 637. Our review of the record convinces us that the district court’s factual conclusions are not clearly erroneous. Contrary to Appellants’ assertions, the court correctly noted that there was a “total lack of identification” of the vehicle and the driver, Furman. There was no proof of insurance or registration on the car. While Furman gave the officers a name that dispatch confirmed was the holder of a valid Washington driver’s license, he offered no proof that he was, in fact, that person. Meanwhile, Meadows supplied the officers with identification that they concluded was false on its face. Furman gave conflicting accounts of where his identification was and did not identify the address that was listed on the Washington driver’s license, nor did he offer an explanation for the discrepancy between it and the addresses that he did provide. All of these factors support a reasonable suspicion that Furman and Meadows were not who they claimed to be.

[¶21] The additional facts noted by the court support the decision to detain Appellants after the traffic citations were issued. Appellants’ actions were not consistent with their claim that they were traveling to Ohio for a funeral. The speeding ticket issued to Furman in Montana was dated four days before the stop at issue in this case. Fur-man acknowledged that he was traveling without cash or access to an ATM card. There were discrepancies between Furman’s and Meadows’ description of their itinerary. Meadows claimed that they planned to stop in Oshkosh before proceeding to Ohio, while Furman insisted that they were traveling straight through. These facts combined with the weighted trunk and Furman’s abnormal nervousness give rise to a reasonable suspicion that they had committed or were committing a crime. Trooper Gill testified that among the factors they consider to determine if there is the possibility of drug trafficking are: (1) a lack of identification on the vehicle occupants including either driver’s licenses or credit cards; (2) no identification on the vehicle outside of the VIN number; (3) the demeanor of the occupants; and (4) discrepancies among the occupants regarding their destination. Courts have found similar factors sufficient to support the continued detention of a vehicle’s occupants in order to investigate possible drug trafficking. See United States v. Zubia-Melendez, 263 F.3d 1155 (10th Cir.2001) (Driver could not produce identification or vehicle registration and occupants gave conflicting accounts of their travels justifying detention pending a canine search.); see also United States v. Kopp, 45 F.3d 1450, 1454 (10th Cir.1995); United States v. Finke, 85 F.3d 1275 (7th Cir.1996). Confronted with the lack of evidence of Fur-man’s identification and his authority to use the vehicle, Trooper Gill was justified in asking questions about the identity and travel plans of him and his passenger. Zubia-Melendez, 263 F.3d at 1161. Based upon the dubious and inconsistent answers to his questions regarding their identification and travel plans coupled with Furman’s nervousness and the weighted trunk, Trooper Gill was justified in detaining Appellants for further investigation.

Consent to Search Vehicle

[¶ 22] In their second issue, Appellants allege that Furman’s consent to search the vehicle was not voluntary. Appellants contend that Trooper Gill created an atmosphere that effectively coerced Furman’s consent to search the vehicle. Appellants point to various comments appearing on the videotape made between Trooper Gill and Trooper Hunt while they were seated in Gill’s patrol car. These comments included a statement from Trooper Gill that he would “bet” a soda that he could get Furman to allow a search of his vehicle. Furman also alleges that after he had initially refused to allow a search after receiving the traffic citations, Trooper Gill had informed him that a canine unit was on the way to the scene when, in fact, no unit had been called. Fur-man claims that Trooper Gill lied about the canine unit as part of the process to coerce consent from him. Furman supports his claim of a coercive atmosphere by citing the repeated questioning of him regarding his identity and travel plans and the Trooper’s disregard of his answers or his failure to ask appropriate clarifying questions. Accordingly, Appellants claim that, under the totality of the circumstances, the consent to search the vehicle was not voluntary.

[¶ 23] The question of whether or not consent to search a vehicle was voluntary must be determined under the totality of the circumstances. United, States v. Price, 925 F.2d 1268, 1270 (10th Cir.1991) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 235-37, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)). We have framed the standard of review as follows:

Subject to certain exceptions, warrant-less searches and seizures are per se unreasonable under both the Fourth Amendment to the United States Constitution and Article 1, Section 4 of the Wyoming Constitution. Gronski v. State, 910 P.2d 561, 564 (Wyo.1996). Among the recognized exceptions are searches and/or seizures conducted pursuant to a valid consent. Id. “Whether an exception exists in a particular case is a question of fact that may be properly resolved by a preponderance of the evidence standard in the light of all attendant circumstances.” City of Laramie v. Hysong, 808 P.2d 199, 203 (Wyo.1991). When this Court reviews questions of fact, we view the evidence in the light most favorable to the prevailing party. Id. The burden of proving that the circumstances of a particular case fit within an exception is with the State. Vale v. Louisiana, 399 U.S. 30, 34, 90 S.Ct. 1969, 1972, 26 L.Ed.2d 409 (1970).

Gehnert v. State, 956 P.2d 359, 362 (Wyo.1998).

[¶ 24] The record does not support the contentions made by Appellants. First, they fail to explain how the comments made between Troopers Gill and Hunt had any reasonable effect upon Furman’s consent. While the comments may have been questionable on a professional level, they were made outside of Appellants’ presence and could have had no discernible effect on Fur-man’s decision at the time it was made. Second, the questions posed by Trooper Gill were a reasonable response to Appellants’ prevarications on their identities and travel plans. Finally, Trooper Gill testified that he told Furman he was going to call the canine unit not that he had already done so. There is no evidence that the officer was using the prospect of a canine search as a coercive tool to wrest consent from Furman. The State satisfied its burden of demonstrating that the search of the automobile was justified under the consent exception to the warrant requirement, and the district court’s denial of Appellants’ motions to suppress is affirmed.

CONCLUSION

[¶ 25] Appellants’ detention was based on specific, articulable facts and reasonable inferences derived therefrom that formed a reasonable suspicion of criminal activity. The evidence also supports a conclusion that Furman’s consent to search the vehicle was given voluntarily. The district court’s denial of the motions to suppress is affirmed.

      . The facts are derived from the transcript of the hearing on the Appellants' motion to suppress and the videotape of the stop.

      . The record does not disclose whether there was ever any confirmation that Albright was, in fact, Furman's brother. However, there is confirmation that Albright had given Furman and Meadows permission to use his vehicle.

      . Meadows never explicitly identified a state. The State presumes she meant Oshkosh, Wisconsin although there is an Oshkosh in Nebraska too.

      . Furman requests that the Court impose a stricter standard under the Wyoming Constitution than that embodied under federal case law to specifically require a connection between the nature of the investigation and the suspicions underlying the reason for a motorist's continued detention. Furman does not provide a cogent argument for why or even what specific criteria would drive such a standard. However, we need not make a specific ruling on this issue since we conclude that there was a sufficient nexus between the specific, articulable facts and the rational inferences derived therefrom and the investigation into whether or not Appellants were trafficking illegal drugs.

      . To a significant degree, Appellants' argument is predicated on the contention that their detention was illegal. We have held that the detention was justified under the circumstances and, therefore, to that extent Appellants' claim on this point is moot.


source: Caselaw Access Project

author: KITE, Justice.

license: Public Domain

text:
    2003 WY 36
    Terry A. ROOT, Appellant (Defendant), v. Pamela Potter ROOT, Appellee (Plaintiff).
    No. 01-137.
    Supreme Court of Wyoming.
    March 13, 2003.

      James K. Lubing of James K. Lubing Law Office, Jackson, Wyoming, Representing Appellant.
    George L. Simonton and M. Jalie Mei-necke of Simonton & Simonton, Cody, Wyoming, Representing Appellee.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

       Chief Justice at time of oral argument.

   KITE, Justice.

[¶ 1] Terry A. Root (the husband) and Pamela Potter Root (the wife) were married for almost eighteen years during which time the wife obtained a medical degree. After acquiring a pathology business in Cody and practicing there for several years, the wife filed for divorce. The trial court divided the marital property, including the value of the pathology business, equally between the parties. The husband appeals the trial court’s division of property contending the value of the pathology business was too low and he was entitled to a larger share of the marital property because of the financial support he provided and the career sacrifices he made to further the wife’s medical education. We affirm the trial court’s property division and remand the matter for conformation of the Decree of Divorce with the decision letter.

ISSUES

[¶ 2] The husband presents these issues for resolution:

I. Whether the Court abused its discretion in determining the value of the business as its decision was not supported by the evidence at trial.
II. Whether the Court abused its discretion in accepting opinion testimony from [the wife’s] expert, as he was not qualified as an expert, and had done no substantive review of the value of the business.
III. Whether it was error for the Court not to take career sacrifices into account when determining property distribution.
IV. Whether it was error for the Court to allow [the wife] to deduct over three thousand dollars ($3,000.00) per month for child support calculation purposes where such sum is clearly includable in her income pursuant to § 20-2-303(a)(ii) & (iii).

The wife frames the issues in the following manner:

I. Did the trial court abuse its discretion in determining the value of Big Horn Basin Pathology?
II. Did the trial court abuse its discretion in considering the expert testimony?
Ill Did the trial court abuse its discretion in the manner in which it determined the marital sacrifices issue?
IV. Did the court properly consider the parties[’] financial affidavits in determining the child support calculations?

FACTS

[¶ 3] The applicable standard of review requires we consider only the evidence in favor of the successful party, ignore the evidence of the unsuccessful party, and grant to the successful party every reasonable inference that can be drawn from the record. Belless v. Belless, 2001 WY 41, ¶ 6, 21 P.3d 749, ¶ 6 (Wyo.2001). For this reason, we consider the facts in a manner most favorable to the wife as the prevailing party in the trial court.

[¶4] The husband and the wife married on July 16, 1983. At the time, the husband worked for the United States Forest Service as a wildlife biologist and expressed an interest in attending law school. The wife was a licensed practical nurse, held a degree in journalism, and intended to go to medical school. She had saved some money to fund her medical school costs prior to meeting and marrying the husband. In the spring before the marriage, the husband took steps to apply to law school but did not pursue this career option any further. The wife applied to medical school. After the marriage, she attended Creighton University Medical School in Nebraska through the University of Wyoming contract program which pays a portion of the student’s school costs in exchange for a commitment to practice in Wyoming for a period of time upon graduation. The husband took a series of jobs which were essentially lateral transfers in order to remain close to the wife while she attended school. The wife gave birth to three children while she was attending medical school. Both spouses contributed to the family’s living expenses, the husband through his full-time work and the wife through her intermittent, part-time work. The wife graduated from medical school in 1989 and completed her residency in 1994 at which time the family moved to Wyoming.

[¶ 5] The husband took a job at the National Elk Refuge in Jackson Hole, and, because the wife could not find suitable employment in Jackson, she and children moved to Cody where she commenced work for a pathologist at Big Horn Basin Pathology, Inc. In 1996, the wife entered into an agreement with the pathologist to purchase his business for $30,000 to be paid over five years. Also in 1996, the husband moved to Cody and took a job with the United States Fish and Wildlife Service as well as developing a radon detection and control business and doing some consulting for Integrated Pest Management. The husband also worked at various times for the pathology business as seere-tary/treasurer, general business manager, and bookkeeper. The purchase price of the pathology business was completely paid by July of 1999.

[t 6] The couple’s marital difficulties began in 1988, and they attended marriage counseling. In early September of 1999, the wife’s friend told her that the husband was preparing to file for divorce. The wife responded by filing for divorce against the husband on September 8, 1999. In October 1999, approximately one month after the divorce action was filed, the parties jointly applied for a loan to purchase the residence the husband was living in at the time of the divorce trial. In the loan application, signed by both the husband and the wife, the pathology stock was listed with a value of $30,000. In January 2000, the husband ceased working for the pathology business.

[¶ 7] The parties vigorously litigated the appropriate and equitable division of property during a three-day divorce trial held in February 2001. Both parties submitted expert testimony regarding the manner in which the pathology business should be appraised. The wife’s expert provided no opinion as to the specific value of the business; however, he did testify the value should be determined by adding the accounts receivable, discounted for monthly fluctuations and expenses, to the value of the hard assets. He contended there was no “blue sky” or good will because the business was wholly dependent on the wife’s medical expertise. The wife testified the hard assets were worth $30,000, and a summary of the business records from July 1, 1999, through October 31, 2000, prepared in response to discovery requests indicated the accounts receivable were $72,481.50 without deductions for expenses. She acknowledged that one piece of equipment had been purchased for $40,000 since the acquisition of the business, but she did not believe it was worth very much on resale. The husband’s expert estimated the accounts receivable and the value of the good will based on the annual gross income generated and industry statistics to value the business at $394,772. The trial court determined the business was worth $50,000 and awarded $25,000 of that amount to the husband. The remainder of the marital estate was also divided equally between the husband and the wife. We observe, although not raised by the parties, the Decree of Divorce did not reflect the $25,000 award to the husband and did not appear to comply with W.R.C.P. 58(a) which requires both parties approve orders as to form. The wife, however, does not contest that the husband should receive the $25,000. The husband appealed contending the trial court erred by undervaluing the pathology business and not awarding him a larger proportion of the marital property to compensate him for his contributions to, and sacrifices for, the wife’s medical career.

STANDARD OF REVIEW

[¶ 8] We have often acknowledged:

There are few rules more firmly established in our jurisprudence than the proposition that the disposition of marital property is committed to the sound discretion of the district court. Judicial discretion is made up of many things, including conclusions reached from objective criteria, as well as exercising sound judgment with regard to what is right under the circumstances and without doing so arbitrarily or capriciously. We are required to ask ourselves whether the trial court could reasonably conclude as it did and whether any facet of its ruling was arbitrary or capricious.

Holland v. Holland, 2001 WY 113, ¶ 8, 35 P.3d 409, ¶ 8 (Wyo.2001). As noted above, we consider the prevailing party’s evidence to be true and give every reasonably drawn inference to it while we disregard all conflicting evidence. Hensley v. Hensley, 896 P.2d 115, 115 (Wyo.1995) (per curiam). Further, property divisions are complex and therefore require the trial court, in its discretion, to assess what is right under the circumstances while considering the respective merits and needs of the parties. McCulloh v. Drake, 2001 WY 56, ¶ 15, 24 P.3d 1162, ¶ 15 (Wyo.2001). “An abuse of discretion occurs when the property disposition shocks the conscience of this court and appears to be so unfair and inequitable that reasonable people cannot abide it.” Hall v. Hall, 2002 WY 30, ¶ 12, 40 P.3d 1228, ¶ 12 (Wyo.2002).

DISCUSSION

A. Expert Witness Testimony

[¶ 9] On appeal, the husband contends, for the first time, the wife’s expert, Lawrence McGovern, was not qualified to provide an expert opinion regarding the value of the business. It is interesting to note the husband actually tried to retain Mr. McGovern as his expert prior to trial. Further, the husband made no objection to this witness’ qualifications or expertise prior to or during trial. See Alexander v. Meduna, 2002 WY 83, ¶ 21, 47 P.3d 206, ¶21 (Wyo.2002); Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-93, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). He did make a number of objections to Mr. McGovern’s testimony on the basis that Mr. McGovern lacked foundation for his opinions, and the trial court, for the most part, overruled these objections. We generally will not address issues raised for the first time on appeal. Parsons v. Parsons, 2001 WY 62, ¶ 13, 27 P.3d 270, ¶ 13 (Wyo.2001); Pace v. Pace, 2001 WY 43, ¶ 22, 22 P.3d 861, ¶22 (Wyo.2001). Furthermore, as we remarked in Betzle v. State, 847 P.2d 1010, 1022 (Wyo.1993):

Had an objection been posed to the expertise of this witness on the ground that [he] lacked the qualification or training essential to an expression of an opinion as an expert in [his] field or if voir dire had been requested with respect to [his] qualifications, as a party must do to assign as error the lack of expertise, we would have a more adequate record to consider.

[¶ 10] Mr. McGovern was an independent consultant who provided advice to a variety of medical concerns, including Harvard Medical School, regarding the acquisition and sale of medical practices and physician recruitment. Although Mr. McGovern did not have a college degree, he had over fourteen years of practical experience in the acquisition and operation of medical practices and had worked in administration in the medical field since the 1970s. He also had knowledge of the medical communities in northwest Wyoming and adjacent areas of Montana. Given that evidence, we cannot conclude the trial court abused its discretion by permitting him to testily. Unless an expert witness is clearly unqualified, questions concerning the nature of his qualifications normally go to the weight accorded the witness’ testimony rather than the admissibility of his testimony. Seivewright v. State, 7 P.3d 24, 31 (Wyo.2000).

B. Value of the Business

[¶ 11] The husband failed to persuade the trial court that the pathology business was worth substantially more than the purchase price plus the value of the hard assets. In this appeal, he asks this court to substitute its judgment for that of the trial court. To do so, we must be convinced the trial court abused its broad discretion in dividing the marital property. After a careful review of the record, we are not convinced any such abuse of discretion occurred. The husband alleges the trial court’s findings do not provide sufficient detail concerning the court’s reasoning regarding the value of the pathology business. This argument lacks merit because the record does not reflect a request for special findings pursuant to W.R.C.P. 52(a) was ever made. Without such a request, we presume the trial court made all appropriate findings supported by the evidence.

A failure of a court to mention the specific factors does not mean that they were not considered. In the absence of special ñndings of fact, this court considers that the judgment of the trial court carries with it everg finding of fact necessary to support the judgment and decree. It is not a function of this court to divide property in the first instance.

Barney v. Barney, 705 P.2d 342, 345 (Wyo.1985) (citations omitted & emphasis added); see also Parsons, 2001 WY 62, ¶ 11, 27 P.3d 270.

[¶ 12] We agree the record must contain sufficient evidence to support the court’s distribution of property. Bricker v. Bricker, 877 P.2d 747, 751 (Wyo.1994). We have held the trial court does not abuse its discretion when it values contested property within the range of both parties’ appraisals. McLoughlin v. McLoughlin, 996 P.2d 5, 7 (Wyo.2000). We have also held, when the value of the parties’ business property is questioned, even though an appraisal “may” be helpful, it is not absolutely necessary. Bricker, 877 P.2d at 751; Klatt v. Klatt, 654 P.2d 733, 737 (Wyo.1982). In this instance, the trial court’s value of $50,000 was reasonable when considered in light of the evidence.

[¶ 13] Approximately one month after the divorce action was filed, the husband signed a loan application in which he and the wife listed the value of the pathology stock at $30,000. The mortgage application form provided, immediately preceding the parties’ signatures:

I/We certify that the information provided in this application is true and correct as of the date set forth opposite my/ our signature(s) on this application and acknowledge my lour understanding that any intentional or negligent misrepresentation(s) of the information contained in this application may result in civil liability and/or criminal penalties ... and liability for monetary damages to the Lender, its agents, ... and any other person who may suffer any loss due to re-banee upon any misrepresentation which I/we have made on this application.

(Emphasis added.) The parties made this application in order to purchase the residence the husband was living in at the time of the divorce trial. The husband contends the wife completed the application, and he did not read it. However, he did certify the information was correct and directly benefited from the loan which funded the purchase of his personal residence.

[¶ 14] The wife contended the value of the business should be determined by adding the accounts receivable, properly discounted for expenses, to the value of the hard assets. She testified outstanding accounts receivable were approximately $72,000, the acquisition price was $30,000, and assets purchased after acquisition were not of significant value. While arguing expenses must be considered and deducted from the accounts receivable, the wife did not provide the court with the amount of those expenses.

[¶ 15] The husband’s expert, Richard Holdren, took an entirely different tack contending industry data supported a much higher value based upon the business’ gross annual income, which was over $500,000 in 1999 and over $750,000 in 2000, and the good will. While Mr. Holdren was certainly qualified to perform an appraisal of a pathology business, having performed approximately 1,500 such appraisals nationwide, he had no knowledge of the business climate for a pathology business in Wyoming in general, or specifically in the Big Horn Basin. He admitted he did not have all the financial information he usually relied on to value such a business, such as accurate records of accounts receivable and expenses, and he had to estimate certain figures from trade sources. In addition, he admitted his evaluations usually exceeded the actual sales price for the businesses by twenty percent and were usually inflated by twelve percent for a sales commission. Despite his lack of knowledge of the local market conditions for a pathology practice, he calculated a good will value for the business of $206,243.33 and incorporated this figure with his other computations to conclude the business was worth $394,772. The trial court discounted Mr. Holdren’s opinion as follows:

The Big Horn Basin Pathology business is awarded to [the wife]. It has a reasonable fair market value of $50,000. [The wife] shall pay [the husband] $25,000 for his share. I do not find that there is any “goodwill” value to this business. Its income is solely dependent upon the work and skills of [the wife]. These are not assets that can be sold to another physician. For the most part, the business contracts can be terminated by either party on short notice. Their value cannot be transferred but depends upon the efforts and skills of the physician in charge of the business. [The husband’s ] expert did not have sufficient information to deliv er a persuasive opinion as to [the ] value of the business. He did not consider the purchase price paid by Ithe wife ]. He did not have any comparable sales figures nor any offers to purchase this business. When the parties applied for a loan in October of 1999, they valued the business at $30,000.

(Emphasis added.)

[¶ 16] A failure of proof by a party upon whom the burden of proof rests must accrue to the benefit of the party who opposes the issue. Matt, 654 P.2d at 737; Hendrickson v. Hendrickson, 583 P.2d 1265, 1268 (Wyo.1978). The wife came forward with evidence, though perhaps not overwhelming in nature, of the value of the business. Once the wife made a prima facie showing, the evidence was entitled to stand unless controverted. Ferguson v. Ferguson, 481 P.2d 658, 659 (Wyo.1971). If evidence was available which would have refuted this proof, it was incumbent upon the husband to produce it at the trial. Id. This is the essence of our adversarial process. The husband’s expert was not provided all the information necessary to make a more credible appraisal. The trial court discounted his opinion for this reason. It is reasonable to infer that the husband, as the former secretary/treasurer and business manager, had knowledge of the business and what records would exist regarding the value. The husband asserts the wife thwarted his efforts to obtain the detailed financial information necessary to perform a more thorough analysis. The -wife contends she had no independent knowledge of the details of the business finances and she advised the husband he could obtain any information he required from the accountant and the current business manager. The husband’s counsel conceded at oral argument before this court that the husband did not pursue a motion to compel in order to obtain the necessary financial information though the action had been pending for over a year.

[¶ 17] The husband’s complaint that the trial court completely disregarded accounts receivable in its determination of value is unfounded. The $50,000 value exceeded both parties’ estimates of the value of the “hard assets” by $20,000; consequently, we can infer some value for the accounts receivable was included. A reasonable interpretation of the evidence supports some deduction from the estimated accounts receivable for expenses and uncollectable accounts. The court made a reasonable judgment given the limited help it received from the parties in determining the exact amount of those deductions. In addition, if the husband’s valuation of $394,772 is reduced to account for the thirty-two percent padding that his expert conceded may have occurred in his appraisal and to exclude the $206,243.33 good will value rejected by the trial court, only $62,201.63 remain. The trial court’s value of $50,000 is well within the range of that number and the wife’s number.

[¶ 18] In Holland, 2001 WY 113, 35 P.3d 409, the husband similarly complained about the district court’s division of marital property and argued the court should have explained a portion of the award to the wife which appeared to be intended to balance the disparity created by the award of an investment account to the husband. This court responded:

Husband contends that this Court must be able to ascertain with certainty what the basis for that $135,000.00 payment is. The contrary is true. Husband had the burden of demonstrating that the evidence adduced before the district court did not support the property distribution as a whole. This he has failed to do.

2001 WY 113, ¶ 9, 35 P.3d 409. We find ourselves in the same predicament here. The husband, despite not requesting findings pursuant to W.R.C.P. 52(a), complains that the trial court did not explain the basis for its determination of the value for the business. However, the record contains adequate evidence to support a value in the range of the court’s finding, and the trial court found the husband’s evidence of a higher value to be unpersuasive. Given those facts, we cannot conclude the trial court abused its discretion in determining the pathology business was worth $50,000.

C. Equitable Division of Marital Estate

[¶ 19] The husband contends he facilitated the wife’s efforts to obtain her medi-eal degree by supporting her while she went to medical school, at the expense of his own career, which allowed her to ultimately earn substantially more money than he was earning. He described accepting lateral transfers instead of promotions in order to remain close to the wife and support her and their family during her schooling. He claimed he was the primary financial support and caretaker for the family during this time and he gave up attending law school because the parties could not marry and pursue both careers at the same time. The husband claims his deference to the wife’s career resulted in her earning approximately $143,500 annually while he was earning approximately $57,450 annually from his federal employment ($44,450) and his part-time employment with the pathology business ($13,000). On this basis, he argues the trial court abused its discretion by refusing to consider awarding him more than half of the marital assets to offset the sacrifices he made and the corresponding detrimental impact to his earning capacity.

[¶ 20] Pursuant to Wyo. Stat. Ann. § 20-2-114 (LexisNexis 2001):

[T]he court shall make such disposition of the property of the parties as appears just and equitable, having regard for the respective merits of the parties and the condition in which they will be left by the divorce, the party through whom the property was acquired and the burdens imposed upon the property for the benefit of either party and children.

The decision letter dispels the husband’s accusation the court arbitrarily refused to consider his argument and instead reflects the court carefully considered his position and sets out the explicit reasons why the court concluded the facts did not support an increase in the proportion of the property awarded to the husband:

[The husband] is not entitled to any reimbursement for career changes and adjustments. These are the compromises which are made by virtually every party to a marriage. [The wife] could just as well claim that she would have entered a more lucrative specialty if she had been single. [The husband] does not cite any law which allows a party to receive compensation for what he or she might have been able to earn as a single person.
[The husband] is not entitled to reimbursement for [the wife] having obtained a medical degreé during the marriage. This is not a case where [the wife] filed for divorce shortly after graduation and left [the husband] without significant income or assets. Both parties had college degrees at marriage. [The husband] has a good job. Both benefitted from [the wife’s] medical degree. [The husband] received compensation as an employee of the pathology business. They have accumulated a substantial amount of property.

[¶ 21] We have long recognized the trial court possesses a great amount of discretion in dividing marital property. Hall, 2002 WY 30, ¶ 14, 40 P.3d 1228. Just and equitable division of property is just as likely not to be equal. Id.; Carlton v. Carlton, 997 P.2d 1028, 1032 (Wyo.2000). The trial court should consider all facts and circumstances surrounding the dissolution of the marriage in dividing a couple’s marital assets. Hall, 2002 WY 30, ¶14, 40 P.3d 1228; Carlton, 997 P.2d at 1034.

[¶ 22] In this case, the trial court attempted to split the marital assets as equally as possible and ordered payments be made between the parties to balance the awards when the actual value of a hard asset granted to one party was disparate from the value of a similar asset granted to the other. By way of example, the trial court awarded the marital home to the wife and awarded a residence of lower value to the husband. However, it ordered the wife to pay the husband the $71,465 difference between the values of the two homes.

[¶ 23] The trial court was not persuaded that the husband’s support for the wife’s education made a significant difference in the equities and concluded the circumstances were not similar to the Grosskopf v. Grosskopf, 677 P.2d 814 (Wyo.1984), ease where a husband, who had been supported financially by the wife in pursuit of his professional education, filed for divorce immediately after graduation. In this ease, the evidence showed both parties assisted in supporting the family during the medical school years, and the trial court found, in the years since the wife graduated from medical school, the husband benefited equally from the income she earned as a result of her medical degree.

[¶24] We decline to micromanage the disposition of marital property by the trial courts. Suffice it to say, it is clear the trial court in this case tried to divide the marital property in half by awarding assets and cash of $331,822 to the husband and $321,897 to the wife. We are unable to identify any manifest abuse of discretion in the division of this marital estate. Carlton, 997 P.2d at 1032.

D. Procedural Issue Form of Decree

[¶ 25] The Decree of Divorce fails to set forth the $25,000 cash award to the husband for his share of the business as described in the decision letter. The appropriate procedure for drafting and approving orders is provided in W.R.C.P. 58(a) (emphasis added):

(a) Presentation. Subject to the provisions of Rule 55(b) and unless otherwise ordered by the court, written judgments or orders shall be presented to the court within 20 days after its decision is made known. Before submitting the judgment or order, the partg drafting it shall seek to secure the written approval as to form of the other parties. If, within 10 dags, approval as to form is not obtained, the partg drafting the form of judgment or order mag forward the original to the court and serve a copg on the other parties with a notice advising objections must be made within 10 dags. If no written objection is timelg filed, the court mag sign the judgment or order. If objection is filed, the court will resolve the matter with or without a hearing. A party objecting shall submit an alternative form of judgment or order with the objection.

[¶26] The decision letter indicates the court asked the wife’s attorney to prepare the order, though we cannot discern the author from the face of the document nor does the document have a place for the parties to sign to indicate their approval as to form. The findings and conclusions must be contained in an order signed by the judge and entered upon delivery to the clerk of court. W.R.C.P. 58(c). The decree awards the business to the wife without mentioning the $25,000 payment to the husband for his share of the value of the business. The provisions of W.R.C.P. 58(a) are intended, at least in part, to avoid just this kind of procedural gaffe by ensuring both parties review and approve the proposed order before it is sent on to the trial court for signature. If there is an objection, the court can resolve it with notice to all parties. In this instance, the parties do not raise and, we presume, inadvertently overlooked the omission of the $25,000 award from the Decree of Divorce. The trial court undeniably intended for the husband to receive that amount for his one-half interest in the pathology business. For this reason, we remand the case to the trial court with instructions the Decree of Divorce be conformed to include the $25,000 award to the husband.

[¶ 27] Affirmed in all substantive respects and remanded for conformation of the Decree of Divorce consistent with this opinion.

      . The parties stipulated to remand of the child support issue, and this court issued an order on February 14, 2002, remanding the matter to the trial court.

      . W.R.C.P. 52(a) provides:
      (a) General and Special Findings by Court. Upon the trial of questions of fact by the court, or with an advisory jury, it shall not be necessary for the court to state its findings, except generally for the plaintiff or defendant, unless one of the parties requests it before the introduction of any evidence, with the view of excepting to the decision of the court upon the questions of law involved in the trial, in which case the court shall state in writing its special findings of fact separately from its conclusions of law; provided, that without such request the court may make such special findings of fact and conclusions of law as it deems proper and if the same are preserved in the record either by stenographic report or by the court’s written memorandum, the same may be considered on appeal. Requests for findings are not necessary for purposes of review. The findings of a master, to the extent that the court adopts them, shall be considered as the findings of the court. Findings of fact and conclusions of law are unnecessary on decisions of motions under Rules 12 or 56 or any other motion except as provided in subdivision (c) of this rule.


author: FABE, Chief Justice.

text:
    Joyce GETCHELL, Appellant, v. Barbara LODGE, Appellee.
    No. S-10458.
    Supreme Court of Alaska.
    Feb. 28, 2003.

      Danya R. Crosby and Mark E. Ashburn, Ashburn & Mason, Anchorage, and Jeffrey D. Jefferson, Nordstrom, Steele, Nicolette & Jefferson, Kenai, for Appellant.
    David S. Carter and Kimberlee A. Colbo, Hughes, Thorsness, Powell, Huddleston & Bauman, LLC, Anchorage, for Appellee.

      Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

FABE, Chief Justice.

I. INTRODUCTION

When Barbara Lodge saw a moose in her lane of traffic, she braked and skidded on ice into the oncoming lane of traffic, causing a collision with Joyce Getehell’s ear. Getchell sued Lodge, and the case proceeded to a jury trial. The jury found that Lodge was not negligent. Getchell appeals the superior court’s denial of her motions for judgment notwithstanding the verdict (JNOV) and new trial. She also appeals the trial court’s admission of the investigating state trooper’s testimony. Because we conclude that the trial court did not err in denying Getehell’s motions for JNOV or new trial, or in admitting the trooper’s testimony, we affirm.

II. FACTS AND PROCEEDINGS

On the morning of January 16,1998, Joyce Getchell and Barbara Lodge drove to work on the Kenai Spur Highway. Getchell headed south on the highway towards Kenai. Lodge headed north towards Nikiski. A thin layer of ice covered the unsanded road; the morning was dark. There was a dispute at trial about what happened next. However, because we draw all factual inferences in favor of the non-moving party when reviewing motions for JNOV and new trial, what follows is Lodge’s account.

Because of the darkness, the icy road conditions, and the possibility of moose crossing the highway, Lodge was driving at about forty-five miles per hour, even though the speed limit was fifty-five. A moose emerged out of the darkness from Lodge’s right and tried to cross the road as Lodge neared Mile 20 of the highway. Lodge hit her brakes as hard as she could. She testified that her car skidded immediately and began to rotate in a counterclockwise direction. Lodge lost control of her car as it continued to rotate and slide. Ultimately, the ear crossed the center line of the road. The ear finished rotating and came to a stop in the southbound lane. As Getchell headed south towards Mile 20, driving between forty-five and fifty-five miles per hour, she saw a car in her lane. Getchell hit the passenger side of Lodge’s ear. The impact injured Getchell’s ankle, requiring surgery. State Trooper Harold Leichliter investigated the accident and completed an accident report based upon his observations of the scene and witness interviews.

Getchell brought a personal injury negligence action against Lodge. Before trial, Getchell objected to the introduction of portions of Trooper Leichliter’s videotaped deposition. Getchell argued that the objectionable portions of the deposition should be excluded as impermissible opinion testimony under Alaska Rules of Evidence 701 and 702. Additionally, she argued that Trooper Leich-liter’s testimony was irrelevant and more prejudicial than probative, and therefore ex-cludable under Alaska Rules of Evidence 402 and 403. The superior court admitted Trooper Leichliter’s testimony over Getc-hell’s objections.

Superior Court Judge Harold M. Brown conducted a three-day jury trial in July 2001. Getchell moved for a directed verdict, which the trial court denied. The jury found Lodge not negligent. After hearing the verdict, Getchell orally moved for a judgment in her favor notwithstanding the verdict or, alternatively, a new trial. The court entered judgment in favor of Lodge and against Getchell in September 2001, for $17,042.50 in attorney’s fees and $5,473.18 in costs, a total of $22,515.68. Shortly thereafter, Getchell filed a motion for judgment notwithstanding the verdict and a motion for new trial. Judge Brown heard arguments on Getchell’s motions in November 2001. Judge Brown denied Getchell’s motions.

Getchell appeals Judge Brown’s denial of her motions for JNOV and new trial. She also appeals the trial court’s admission of Trooper Leichliter’s testimony.

III. STANDARD OF REVIEW

We will affirm a trial court’s denial of a motion for judgment notwithstanding the verdict unless “the evidence, when viewed in the light most favorable to the non-moving party, is such that reasonable persons could not differ in their judgment of the facts.”

A “refusal to grant a new trial is reviewed under an abuse of discretion standard”; accordingly, we review the record “in the light most favorable to the non-moving party.” We disturb the trial court’s exercise of discretion only “in the most exceptional circumstances to prevent a miscarriage of justice.” “An abuse of discretion exists when evidence to support the verdict was completely lacking or was so slight and unconvincing as to make the verdict plainly unreasonable and unjust.”

We review a trial court’s “decision to admit or exclude evidence for abuse of discretion.” An abuse of discretion exists only when we are “left with a definite and firm conviction, after reviewing the whole record, that the trial court erred in its ruling.” We reverse the trial court’s decision to admit or exclude evidence only if we determine that the trial court abused its discretion and that “the error affected the substantial rights of a party.”

IV. DISCUSSION

A. The Trial Court Did Not Err in Denying Getchell’s Motions for Judgment Notwithstanding the Verdict and New Trial.

Getchell argues that the trial court erred in denying her motions for JNOV and new trial, contending that reasonable jurors could have only concluded that Lodge acted negligently. Getchell structures her argument around the tort consequences of Lodge’s alleged violation of two Alaska traffic regulations. Getchell contends that because Lodge crossed the center lane of traffic into Getehell’s lane she violated 13 AAC 02.085 and 13 AAC 02.050. Because Lodge violated these traffic regulations, Getchell argues, the burden of proof shifted to Lodge to show by a preponderance of the evidence that her conduct was excused. To prove excuse in the instant case, Getchell asserts that Lodge had to demonstrate that she exercised reasonable care in two ways: “first, that she refrained from steering into oncoming traffic, and second, that she exercised reasonable care in handling her sliding vehicle.” Getchell contends that Lodge steered into oncoming traffic, took no steps to control her skidding car, and that therefore “reasonable persons could only have concluded that Lodge failed to meet her burden of proving excuse by a preponderance of the evidence.”

Getchell is correct that Lodge can only claim excuse if she handled her moose-avoidance maneuver and the resulting skid in a non-negligent manner. However, contrary to Getchell’s argument, there is evidence in the record that Lodge did not purposefully steer into the oncoming lane and that the skid was not caused by her negligence. We will affirm a trial court’s denial of a motion for judgment notwithstanding the verdict “unless the evidence, viewed in the light most favorable to the non-moving party, is such that reasonable persons could not differ in their judgment as to the facts.” A factual dispute exists here. Similarly, we affirm a trial court’s denial of a motion for a new trial unless the court abused its discretion. We will find an abuse of discretion when no evidence supported the verdict or when the evidence was “so slight and unconvincing as to make the verdict plainly unreasonable and unjust.” Ample evidence supports the verdict in this case.

Both Getchell and Lodge agree that it would have been negligent to steer into the oncoming lane of trafile on purpose under the circumstances of this case. However, Lodge testified that she did not steer into the other lane.

Q But you deny that you attempted to turn, correct?
A Yes.
Q Okay. And when asked in your deposition if you swerved to the right or to the left, you said: I did not turn and I did not swerve to the right or left, true?
A That’s what I said, yes.
Q And you maintain that today?
A Yes, mmm-hmm.

James Stirling, Lodge’s accident reconstruction expert, testified similarly:

Q Mr. Lewis testified that tire marks in the trooper photos indicate that Ms. Lodge’s vehicle was sideslipping and rotating as it crossed the center line in the roadway. Do you agree with that position?
A Yes I do.
Q What’s the significance of that information?
A The rotation started in her lane.
Q Are you aware of any evidence in this case that Ms. Lodge intended to steer into or swerve into the oncoming lane of traffic?
A No, I’m not.

In addition to the evidence that Lodge did not steer into the oncoming lane of traffic, Lodge testified that she slammed on her brakes to avoid a moose in her lane. According to Lodge, her brakes locked and she skidded into Getchell’s lane. Reasonable jurors could have concluded that the presence of the moose in the road excused Lodge’s skid into the oncoming lane of traffic. Skidding to avoid a moose is the type of excuse contemplated by § 288A of the Restatement (Second) of Torts, adopted by this court in Ferrell v. Baxter. , Comment h of this section aptly describes this situation:

B. The Trial Court Did Not Err in Admitting Trooper Leichliter’s Testimony.

Emergency. As in other cases of negligence (see § 296), the violation of an enactment or regulation will ordinarily be excused when the actor is confronted with an emergency which is not caused by his own misconduct.

It is plausible that the jury concluded that the moose created an emergency situation for Lodge and that they therefore excused the unfortunate consequences of her attempt to avoid the moose.

The jury also heard other evidence from which it could have reasonably concluded that Lodge was not negligent. Lodge points out that she had very little time to react after she saw the moose in the road. Lodge’s accident reconstruction expert, James Stirling, expressed his opinion that Lodge had approximately “three-point-some seconds before” she would have collided with the moose. According to Stirling, Lodge’s perception of the danger, before she took any evasive action, would have consumed one-and-a-quarter to one-and-a-half seconds. Thus, Lodge argues, she had one-and-a-half seconds at most to slow the ear down and correct the slide. Stirling testified that “[gjiven the surface and how slick it was, and given the speed of 45 miles an hour, [Lodge’s attempts to correct her ear’s rotation] would have had to have been almost instantaneous to stop.... I would think she would have to perform higher than the average driver to do it.” Based upon this testimony, reasonable jurors could have concluded that “Lodge was unable after reasonable care to comply with [13 AAC 02.085 and 13 AAC 02.050].” The trial court did not abuse its discretion in denying Getc-hell’s motions for JNOV or new trial.

1. Trooper Leichliter testified as a hybrid witness.

Trooper Leichliter responded to the accident in this case and wrote an accident report. Before trial, Getehell objected to Trooper Leiehliter’s proposed testimony about causation and fault. She argued in a motion in limine that Trooper Leichliter should not be able to offer expert opinions because Lodge listed him as a fact witness rather than an expert witness in her witness list. Getehell asserted that because Trooper Leichliter was a fact witness, his testimony should be excluded as improper lay opinion evidence under Alaska Rule of Evidence 701 because, contrary to Rule 701’s requirements, he did not see the accident. Alternatively, Getehell argued that if the court considered Trooper Leichliter an expert, his testimony should be barred because it did not satisfy Rule 702’s helpfulness requirement. Although Lodge listed Trooper Leichliter as a fact witness, rather than an expert, the trial court apparently considered his testimony to be expert testimony. Judge Brown permitted Trooper Leichliter to testify regarding causation based upon his investigation of the accident.

In his testimony, Trooper Leichliter focused on the accident report that he prepared when he arrived at the accident scene. He testified that the moose was the only contributing factor and that no human factors contributed to the accident. Trooper Leichliter gave the opinion that drivers generally react to the sight of a moose in the road in front of them by braking, which could lead to skidding and loss of control in icy road conditions. He testified that he found no evidence indicating any improper conduct by Lodge. Lodge’s defense attorney used this testimony in his closing statement as opinion evidence that Lodge was not negligent in responding as she did to the sighting of the moose. Trooper Leichliter’s testimony incorporated both his observations as a percipient witness investigating the scene and his conclusions about causation based on over twenty-two years as a state trooper investigating accidents. Thus, we find that the label “expert” or “fact” witness lacks significance in this situation because Trooper Leichliter provided hybrid testimony.

We discussed the concept of hybrid witnesses in Miller v. Phillips. In Miller, parents of an injured newborn sued their midwife for negligence. The jury found for the midwife. On appeal, the parents argued that the trial court erred in allowing the midwife’s supervising physician to testify as an expert because the midwife called him as a fact witness. The trial court allowed the doctor to testify as a hybrid witness; he could not testify “in general terms about the appropriate standard of care,” but he could testify to “his expert observations [and] his own opinions as to what he observed,” as well as his “expert opinions based on his review of hospital records.” We held that the physician could express expert opinions formed as a supervisory participant, reasoning that “[w]hen physicians are called to testify about matters pertaining to the treatment of their patients, the distinction between an expert witness and a fact witness inevitably becomes blurred.” Like the treating physician in Miller, Trooper Leichliter, the investigating officer, was “intimately involved in the underlying facts giving rise to the litigation and ... would reasonably be expected to form an opinion through that involvement.” Thus, despite Lodge’s choice to list Trooper Leich-liter as a fact witness, it was not error to permit him to base his opinions on his expertise. Moreover, Getchell was fully aware of the content of Trooper Leichliter’s proposed testimony. She was able to depose Trooper Leichliter and thus suffered no prejudice from Lodge’s decision to list him as a fact witness.

2. The trial court did not err in admitting Trooper Leichliter’s testimony under Rule 702.

Getchell also argues that the trial court abused its discretion by admitting Trooper Leichliter’s testimony as an expert witness because his testimony did not comply with Alaska Rule of Evidence 702. She contends primarily that Trooper Leichliter’s testimony did not help the jury because the jury was at least as capable as Trooper Leichliter of determining whether Lodge acted reasonably.

Alaska Rule of Evidence 702(a) allows a witness to give opinion testimony if the witness is qualified “by knowledge, skill, experience, training or education,” and if “scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.” To be admissible, then, expert opinion testimony must be helpful to the jury. This helpfulness standard requires experts to “stop short of stating their own conclusions” on points that the jury is at least equally capable of determining. In Spenard Action Committee, we relied on this rationale in holding that the superior court had erred in permitting police officers to express their opinion that a massage parlor was operating as a house of prostitution. On the other hand, in cases such as Adkins v. Lester and State v. Phillips, we have approved of the admission of police officers’ opinions as to the cause of particular traffic accidents that they have investigated.

Trooper Leichliter’s testimony satisfies Rule 702’s requirements. First, his knowledge and experience qualified him as an expert. He served as a state trooper in Kenai for twenty years, and, as Lodge points out, Trooper Leiehliter “routinely determined whether there were any human factors contributing to [accidents involving moose], such as speeding, or whether the accident was simply the result of a moose interfering with motor vehicle traffic.” Second, Trooper Leichliter’s testimony was at least of arguable assistance to the jury. His implied opinion that Lodge had not been negligent was not different in kind than the police testimony permitted in Adkins v. Lester and State v. Phillips. Finally, it is analogous to the type of testimony given by the accident reconstruction experts who testified at the trial without objection. The trial court did not abuse its discretion in admitting Trooper Leiehliter’s testimony under Rule 702.

3. The trial court did not err in declining to exclude Trooper Leichli-ter’s testimony under Alaska Rule of Evidence 403.

Getchell finally argues that the trial court should have barred Leiehliter’s testimony under Alaska Rule of Evidence 403 because it was more prejudicial than probative.

Alaska Rule of Evidence 403 provides that the trial court may exclude relevant evidence “if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evi-denee.” The commentary to the rule explains that “[situations in this area call for balancing the probative value of and need for the evidence against the harm likely to result from its admission.... [T]here is a slight presumption in favor of admitting relevant evidence.... [T]o overcome this minimal presumption, the prejudicial effect must be demonstrably greater than the probative value of the evidence.”

It is true that Trooper Leichliter’s testimony was prejudicial to Getchell in the sense that it bolstered Lodge’s argument that her conduct was excused because she skidded to avoid a moose. However, “undue prejudice connotes not merely evidence that is harmful to the other party, but evidence that will result in a decision being reached by the trier of facts on an improper basis.”

We recognize that there is a danger that a police investigator’s conclusion will be given undue weight by a jury. In any particular case this may be a real danger. The officer may be focusing on whether the evidence will support a quasi-criminal traffic citation that must be proven beyond a reasonable doubt, rather than whether there is civil negligence that need only be proven by a preponderance of the evidence. Nonetheless, this possibility may be ignored by a jury, and because of the neutrality and prestige of an investigating officer, the officer’s testimony may be given decisive weight. There is case law in other jurisdictions holding that a police officer’s decision whether to issue a traffic citation is inadmissible on the question of negligence. These authorities are based in part on the rationale that such testimony amounts to an opinion on an ultimate issue that is for the trier of fact to decide, an exclusionary rationale that our rules reject, and in part on the undue weight concerns. The answer we have accepted in response to these legitimate concerns is not a rule of blanket exclusion. Instead, vigorous advocacy including cross-examination is expected to serve as a safeguard against undue weight being given to police testimony. A second safeguard is the discretionary power of the trial court under Rule 403 to exclude testimony when, on balance, its probative force is outweighed by the danger of unfair prejudice. In the present case the record does not suffice to persuade us that the trial court abused its discretion in striking the balance mandated by Evidence Rule 403 in favor of the admission of Trooper Leiehliter’s implied opinion testimony.

V. CONCLUSION

Because we find that there was evidence from which reasonable jurors could have differed in their judgment of the facts as to whether Lodge acted negligently, we AFFIRM the trial court’s denial of Getchell’s motions for JNOV and new trial. Because the trial court did not abuse its discretion in admitting Trooper Leichliter’s testimony, we AFFIRM the decision to admit the testimony.

      . See Bierria v. Dickinson Mfg. Co., Ltd., 36 P.3d 654, 656 (Alaska 2001); Lynden, Inc. v. Walker, 30 P.3d 609, 612 (Alaska 2001).

      . Lynden, 30 P.3d at 612.

      . Bierria, 36 P.3d at 656.

      . Id.

        . Id. (citations and internal quotations omitted).

      . Liimatta v. Vest, 45 P.3d 310, 313 (Alaska 2002).

      . Id.

      . Dobos v. Ingersoll, 9 P.3d 1020, 1023 (Alaska 2000).

      . A violation of a traffic regulation constitutes negligence per se in Alaska. Ferrell v. Baxter, 484 P.2d 250, 259 (Alaska 1971). This state's traffic laws prescribe the standard of care owed by a reasonable driver "to the general public who may be injured if such standard is not met.” Id. A plaintiff who establishes that a defendant violated a traffic regulation makes a prima facie case that the defendant acted negligently. Id. The defendant then bears the burden "to prove affirmatively that his violation was excused." Id. at 266. "It is fair to put the burden of proving excuse upon the one who has violated the law in the first place.” Id. "Excuse” is a fluid concept. Id. at 264. We have adopted the Restatement (Second) of Torts's position on excused violations of traffic regulations. Id. at 263-64. Section 288(A) provides:
      (1) An excused violation of a legislative enactment or an administrative regulation is not negligence.
      (2) Unless the enactment or regulation is construed not to permit such excuse, its violation is excused when
      (a) the violation is reasonable because of the actor's incapacity;
      (b) he neither knows nor should know of the occasion for compliance;
      (c) he is unable after reasonable diligence or care to comply;
      (d) he is confronted by an emergency not due to his own misconduct;
      (e) compliance would involve a greater risk of harm to the actor or to others.
      Restatement (Second) of Torts § 288(A) (1965).

      .Getchell quotes language from Justice Boochever’s dissent in Wilson v. Sibert, 535 P.2d 1034, 1040 (Alaska 1975), to support her position that "continuous, hard braking during a skid is an unquestionable example of negligent conduct."
      A driver may be presented with an emergency such as skidding on some ice which could not reasonably have been anticipated. Despite the emergency, if he forcefully and continuously applies his brakes, he will be found to have driven negligently. Even though he acted more or less instinctively, such application of brakes is not a reasonable choice.

        Id. at 1041. Getchell's reliance on this portion of Wilson is misplaced for two reasons. First, it is a dissent and thus has no precedential value. Second, Justice Boochever recognized that
      when a driver proceeding on a highway is confronted by a person, animal or other vehicle suddenly appearing in the path of his vehicle ... [the driver] must make an instantaneous decision whether to proceed into the obstacle or to swerve to either side. Either decision may be reasonable under the circumstances, even though if more time were available, the driver could better determine which decision to make.

        Id.

      . Lynden, 30 P.3d at 612 (internal citations omitted).

      . Bierria, 36 P.3d at 656.

      . Id.

      . 484 P.2d at 263-64; see supra note 9.

      . Restatement (Second) of Torts § 288A cmt. h (1965).

      . See Nat’l Bank of Alaska v. McHugh, 416 P.2d 239, 242 (Alaska 1966):
      In holding that the court did not err in refusing to grant appellant's motion for judgment, we applied a test of reasonableness. We held that whether appellee exercised reasonable care for his own safety was a question on which there was room for diversity of opinion among reasonable men. Logically, a decision of that question reached by reasonable men would be a reasonable decision. It would be inconsistent, then, for us to hold that such a decision reached by the jury was contrary to the weight of the evidence or was not supported by legally sufficient evidence, for this would be equivalent to holding that under the evidence the jury could not reasonably have decided as they did on a question upon which reasonable minds could differ.

      . 959 P.2d 1247, 1250 (Alaska 1998).

      . Id. at 1248.

      . Id.

      . Id. at 1250.

      . Id. at 1248, 1250.

      . Wakeford v. Rodehouse Rests. of Missouri, 154 Ill.2d 543, 182 Ill.Dec. 653, 610 N.E.2d 77, 80 (1993).

      . Alaska R. Evid. 702.

      . Spenard Action Comm. v. Lot 3, Block 1, Evergreen Subdivision, 902 P.2d 766, 780 (Alaska 1995).

      . Adkins v. Lester, 530 P.2d 11, 18 (Alaska 1974); State v. Phillips, 470 P.2d 266, 270-71 (Alaska 1970).

      . Alaska R. Evid. 403.

      . Alaska R. Evid. 403 commentary.

      . Liimatta v. Vest, 45 P.3d 310, 315 (Alaska 2002) (quoting Hiller v. Kawasaki Motors Corp., 671 P.2d 369, 373 (Alaska 1983)).

      . See Adkins v. Lester, 530 P.2d 11, 17 (Alaska 1974).

      . See Ferreira v. General Motors Corp., 4 Haw. App. 12, 657 P.2d 1066, 1069 (1983); Ingrum v. Tucson Yellow Cab Co., 131 Ariz. 523, 642 P.2d 868, 872 (App.1982), and authorities cited therein.

      . Evidence Rule 704 provides: "Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” See Wilson v. State, 669 P.2d 1292 (Alaska 1983).

      . Id.

      . Id.


author: PER CURIAM.

text:
    John EVANS, Sr., Sophia Evans, and John Evans, Jr., Petitioners, v. NATIVE VILLAGE OF SELAWIK IRA COUNCIL, Fred Davis and Doris Davis, and Kathleen Greist, Respondents.
    No. S-10646.
    Supreme Court of Alaska.
    Feb. 28, 2003.
    Kneeland Taylor, Anchorage, for Petitioners.

      Aaron M. Sehutt, James E. Torgerson, Heller, Ehrman, White & MeAuliffe, LLP, Anchorage, for Respondent Native Village of Selawik IRA Council.
    Russell A. LaVigne, Jr., Alaska Legal Services Corp., Kotzebue, for Respondents Fred and Doris Davis.
    Chris Provost, Assistant Public Advocate, Brant McGee, Public Advocate, Anchorage, for Respondent Kathleen Greist.
    Christine S. Schleuss, Suddoek & Schleuss, Anchorage, for K.D.
    Ethan G. Sehutt, Julie L. Webb, Tanana Chiefs Conference, Inc., Fairbanks, for Ami-cus Curiae Tanana Chiefs Conference, Inc.
    Donald Craig Mitchell, Anchorage, for Amicus Curiae Legislative Council of the Alaska State Legislature.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

PER CURIAM.

K.D. was born on October 8, 1998. His parents, John Evans, Jr., and Kathleen Greist, were not married. Greist is a member of the Native Village of Selawik; Evans is a member of the Native Village of Kotze-bue. Greist gave K.D. to Doris and Fred Davis immediately after he was born. The Davises are also members of the Native Village of Selawik and Greist’s intent was to accomplish a cultural adoption.

According to Evans, he visited K.D. a few times. On other occasions Evans made efforts to contact K.D. through the Davises; these efforts were rebuffed. From March 14, 1999, until November 1, 1999, Evans was incarcerated.

On November 23, 1999, Evans filed the present action seeking a determination of paternity, an order establishing his custody rights, and an award of primary custody to his parents. On January 15, 2000, the Davises allowed Evans and his parents to take K.D. for the afternoon. For reasons that are contested, they did not return him. In response, the Davises obtained a restraining order against Evans on January 20, 2000. Four days later, on January 24, 2000, the Native Village of Selawik passed a resolution at the Davises’ request recognizing the adoption of K.D. by the Davises and requesting that the state issue a new birth certificate reflecting the adoption. Evans received no notice of the pendency of the adoption resolution.

Evans’s parents, John Evans, Sr., and Sophia Evans, intervened as plaintiffs and the Native Village of Selawik intervened as a defendant in this action. The Evanses moved for partial summary judgment seeking an order declaring that Selawik’s resolution of adoption would not be recognized. Selawik cross-moved for partial summary judgment, seeking a declaration that the adoption resolution was entitled to recognition under comity principles. The superior court ruled that Selawik’s resolution could not be given effect if it was issued in violation of Evans’s due process rights, but that Evans’s due process rights were not violated by the January 24 resolution because he had failed to take timely action to protect his rights.

The Evanses petitioned for review from the superior court’s order. We granted review, limited to the issue of whether the adoption resolution was issued in violation of Evans’s constitutional right to due process. Having considered the parties’ briefs and oral argument, we conclude that Evans’s due process rights were violated and that it would therefore be error to afford comity to the adoption resolution.

Notice to an unwed father of the proposed adoption of his child is required by statute and by the adoption rules. This notice is required regardless of whether the father has taken actions that assert his parental rights and responsibilities. The statutory and rule requirement of notice is constitutionally based. We have recognized that the “interest of a parent whose parental rights may be terminated via an adoption petition is of the highest magnitude,” and that notice and an opportunity to be heard are essential elements of due process under the Alaska Constitution. While it is possible that an unwed father may by inaction with respect to his child over a lengthy period waive his constitutionally protected right to notice of the child’s adoption, there is not in this case either inactivity or a sufficiently long time period that could justify a waiver. When Selawik issued its adoption resolution Evans had already filed suit seeking an order adjudicating his paternity and custody rights and placing K.D. with his parents. Before he filed suit he had visited with the child on a few occasions and unsuccessfully sought visitation on others.

In John v. Baker we held that certain tribal court judgments would be entitled to recognition in Alaska courts under principles of comity. We stated that “state courts should afford no comity to proceedings in which any litigant is denied due process” and we stressed that essential to due process was “whether the parties received notice of the proceedings and whether they were granted a full and fair opportunity to be heard before an impartial tribunal that conducted the proceedings in a regular fashion.” Because Selawik did not provide Evans with notice prior to the resolution of adoption, Evans has been denied due process and the resolution is not entitled to comity recognition.

We therefore remand this case to the superior court with instructions to adjudicate the claims of the parties relating to the custody and visitation of K.D. The court should not afford comity to the resolution recognizing the attempted cultural adoption, rather the adjudication must be made in light of the facts concerning the best interests of the child as they currently exist. The adjudication must be made under Alaska law, and to the extent that the parties seeking custody are not the parents of K.D., under the Indian Child Welfare Act.

For the reasons stated the order of the superior court on cross-motions for summary judgment is REVERSED and this case is REMANDED for further proceedings in accordance with this opinion.

      . Adoptions under tribal custom are recognized by the State Bureau of Vital Statistics when standards defined by a departmental regulation are met. See 7 AAC 05.700; Hernandez v. Lambert, 951 P.2d 436, 441 (Alaska 1998). A parent’s assertion of custody is a disqualifying condition under the regulation. See 7 AAC 05.700(b)(3)(B).

      . The exact number of visits are contested, but the Davises acknowledge visits on October 12, 1998, November 9, 1999, and November 10, 1999.

      . AS 25.23.100(a)(3).

      . Alaska Adoption Rule 10.

      . See AS 25.23.100(a)(2) and (3); AS 25.23.040(a)(2); AS 25.23.050.

      . In re K.L.J., 813 P.2d 276, 279 (Alaska 1991).

      . City of North Pole v. Zabek, 934 P.2d 1292, 1297 (Alaska 1997); Walker v. Walker, 960 P.2d 620, 622 (Alaska 1998).

      . 982 P.2d 738, 763 (Alaska 1999).

      . Id.

      . See, e.g., AS 25.20.060; Turner v. Pannick, 540 P.2d 1051 (Alaska 1975).

      . 25 U.S.C. § 1901 et seq.; John v. Baker, 982 P.2d at 747 (ICWA does not apply to custody disputes between unmarried parents).