author: FABE, Chief Justice.

text:
    SHERRY R., Appellant, v. STATE of Alaska, DEPARTMENT OF HEALTH & SOCIAL SERVICES, DIVISION OF FAMILY & YOUTH SERVICES, Appellee.
    No. S-10831.
    Supreme Court of Alaska.
    Aug. 1, 2003.

      Kathleen A. Murphy, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for Appellant.
    Karla Taylor-Welch, Assistant Attorney General, Fairbanks, and Gregg D. Renkes, Attorney General, Juneau, for Appellee.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETTI, Justices.
   OPINION

FABE, Chief Justice.

I. INTRODUCTION

Sherry R. appeals the superior court's judgment that terminated her parental rights to her children, Doug R., Adam R., Jacob R., and Amy R. The trial court determined that clear and convincing evidence established that Sherry R. failed to remedy within a reasonable period of time the conduct or conditions that placed the four children at substantial risk of harm. Because the superior court's findings were not clearly erroneous, we affirm the termination of Sherry R.'s parental rights.

IL FACTS AND PROCEEDINGS

A. The Children

Sherry R. has four children with David E.: Doug, born 1990; Adam, born 1994; Jacob, born 1995; and Amy, born 1997.

1. Doug

Doug is Sherry R.'s oldest child. He was born in 1990. The Division of Family & Youth Services (DFYS) took temporary custody of Doug in 1992 because his mother, who was living at the Clare House, was too intoxicated to care for him. The case against Sherry was dismissed and Doug was returned to her custody. DFYS referred Sherry to housing and public assistance and provided her with transportation.

In November 1998 Doug's foster mother took him to Tanana Valley Clinic in Fairbanks for a medical evaluation. Dr. Marvin E. Bergeson, a pediatrician, evaluated Doug for signs of possible fetal alcohol syndrome or fetal alcohol effect. From the evaluation, Dr. Bergeson suspected prenatal exposure to alcohol and suggested that prenatal exposure to cocaine was possible.

In May 2001 a custody investigator interviewed Doug. When the custody investigator asked Doug if he missed his mother, he shrugged his shoulders and responded, "I have people to play with that keep me company." According to the custody investigator, Doug reported that his mother drinks frequently. The guardian ad litem (GAL) noted in her report that Doug had concerns about returning to live with his mother. Doug believes his mother might start to drink again.

2. Adam

Adam was born in 1994. Dr. Bergeson diagnosed Adam with atypical fetal alcohol syndrome in 1999. Dr. Bergeson observed that Adam had a significant number of features common to children who are prenatally exposed to alcohol including: short stature, very small eyes, ears that rotated out and are cupped, pegged teeth, severely crossed eyes and one eye that turned in severely.

Adam has been enrolled in special education classes because he has a communication disorder and is visually impaired. Additionally, his special education teacher has noted that Adam shows signs of learning disabilities in reading and math. The custody investigator reported that Adam exhibits some behavioral problems. He sucks his thumb constantly and can be quite moody.

According to the GAL, Adam's teacher reported that Adam blossomed while he was in foster care. She reported in 2002 that while Adam used to be "in a shell," his sense of humor was becoming more apparent. She also noted that he had made significant progress towards being mainstreamed in the 2002-08 school year.

Adam wishes to remain with his foster family. He is concerned that if he goes to live with his mother or father, they will fight.

8. Jacob

Jacob was born in 1995. Dr. Bergeson determined that Jacob may have been prenatally exposed to alcohol. Although he did not exhibit the major physical features asso-clated with fetal alcohol effects, he suffered from significant speech and language delays that his pediatrician "felt were probably attributable to the alcohol exposure but could also be related to cocaine or marijuana exposure." Dr. Bergeson noted in his 1998 evaluation that Jacob was very difficult to understand and was probably understandable less than ten percent of the time. Additionally, Jacob had a history of being socially inappropriate and physically aggressive towards others. Jacob takes medicine for impulse control and aggression. His pediatrician has diagnosed him with unsocialized disorder and attention deficit disorder. The doctor explained that unsocialized disorder means that Jacob "doesn't pick up on social cues ... [and has] no impulse control."

Jacob has difficulty respecting authority and - transferring - appropriate - behavior learned in one setting to a new setting. Jacob acts aggressively towards his peers-hitting, pushing, and grabbing other children-and has thrown chairs in his classroom.

Jacob's counselor, Karin Gillis, reported that his behavior improved markedly after being placed in foster care. Gillis noted that Jacob's play became less violent, his language less foul, and he interacted more appropriately with his brother. Gillis attributed these changes to the stable environment provided by his foster parents. Gillis noted that Jacob "is a kid that has real special needs and will need stability, consistency, of course lots of love and encouragement and a positive behavioral plan ... that the person that's going to take care of him can really [ ] stick to."

4. Amy

One month before Amy was born in 1997, her mother tested positive for cocaine. Sherry admitted to using cocaine during her pregnancy. One day after Amy's birth, DFYS took her into their custody. Dr. Bergeson diagnosed Amy with atypical fetal alcohol syndrome and noted that she suffers from a speech delay.

B. Sherry's Substance Abuse

Sherry has struggled with drug and alcohol abuse for many years. Sherry's alcohol abuse precipitated DFYS's initial contact with her family. DFYS first took custody of one of her children in 1992 because Sherry was intoxicated and could not take care of him. DFYS has received numerous reports alleging substance abuse by Sherry.

Sherry has attempted substance abuse treatment on several occasions between 1996 and 2001. The record suggests that she has participated in seven separate treatment programs. Of those, she has left four, three of those due to noncompliance, has been discharged from one, and has completed two.

In April 1996 DFYS referred Sherry to their substance abuse program. However, Sherry was unsuccessful in completing the treatment. Because of noncompliance, ongoing substance abuse, and "disruptive classroom behaviors," she was discharged from the program in July 1996. It was then recommended that Sherry complete an intensive residential treatment program; she was referred to Clitheroe's twenty-eight-day program. - Sherry was also unsuccessful in completing the Clitheroe program. She left the program against treatment advice in August 1996. At that time, Sherry was pregnant with Amy, and Clitheroe therefore recommended that she complete a treatment program for pregnant women such as the Dena Coy program. That same month, the superi- or court ordered Sherry not to return to the family residence until she had completed substance abuse rehabilitation. It appears that Sherry did not begin the Dena Coy program in the fall of 1996, but rather started outpatient treatment through the Individualized Recovery Intervention Service treatment program in September 1996. Between September 1996 and October 1996, DFYS received four reports of harm alleging substance abuse in the R. home. Additionally, according to DFYS records, Sherry's progress in the treatment program was poor. Anchorage police were called to the home fourteen times between October 1 and October 27, 1996. Sherry was ultimately discharged from the Individualized Recovery Intervention Service treatment program because of noncompliance.

In November 1996 the children were removed from the home and placed in foster care. Sherry spent one week in the Dena Coy treatment program, leaving because she would not comply with their no smoking policy. In April 1997, two months after Sherry gave birth to Amy, Sherry entered the Women and Children's Recovery Program in Fairbanks. Between April and November 1997, all four children were returned to Sherry's physical custody. Sherry completed the Women and Children's Recovery Program in November 1997 and then entered their transitional treatment program. The program personnel discharged Sherry in April 1998, reporting that Sherry was "resistant to treatment." It was also reported at that time that Sherry had "effectively alienated herself from her entire support network," that her potential for relapse was "high," and her progress "poor."

Sherry submitted to three of nine requested random urinalysis tests (UAs) between April and August 1998. The results of all were negative. However, shortly thereafter, she relapsed. In September 1998 Sherry admitted to using crack, In October 1998 the children were removed from Sherry's home because the superior court found that staying with Sherry would be "contrary to the welfare of the children." Sherry had been using cocaine and had resisted entering a treatment program.

In November 1998 Sherry attempted treatment again. She entered the detoxification program at the Regional Center for Alcohol and Other Addictions (RCAOA), and began their residential program on December 1, 1998. She stayed for three months and sue-cessfully completed the program in March 1999.

Sherry relapsed again, however. Shortly after her discharge from RCAOA, she used crack. In April 2001 Sherry reported that she had not used crack since June 1999. She continued to use other drugs though. On December 20, 2000, Fairbanks police officers conducted a child welfare check at Sherry's home which resulted in DFYS taking emer-geney custody of the children. A call from Doug to his father telling him that Sherry was intoxicated precipitated the police officers' check. When the police arrived at Sherry's house, they found marijuana in her pocket and Sherry admitted that she had smoked marijuana earlier that night. The children were placed in two separate foster homes.

In January 2001 it was recommended that Sherry enter an intensive inpatient treatment program in Anchorage at a dual diagnosis facility. Sherry refused the inpatient treatment, opting for outpatient care through Inroads to Healing in Fairbanks. The GAL reported that Sherry completed the Inroads to Healing substance abuse program in November 2001. The GAL noted that Sherry's substance abuse counselor, Betsy Cicilese, expressed reluctance to accept Sherry to the program because she knew that Sherry had already unsuccessfully attempted at least four treatment programs. However, Cicilese reported that Sherry was one of the program's best participants. Sherry did not miss a group or individual session. Additionally, according to the GAL report, Sherry has taken UAs on a regular basis, none of which have tested positive for drugs. However, several specimens were diluted.

Sherry admits that she has had problems with aleohol. However, the degree to which she acknowledges her drinking problem is debatable. When asked at the termination hearing whether she considers herself an alcoholic, she responded: "I'm not real sure. I know I have problems with alcohol but I've been to AA and I still go.... [Tjo a degree of [ ] alcoholism ... I would agree with it. But full blown aleoholie, I don't think so." Sherry testified that her last drink was July 27, 2001, and that she has not used crack cocaine since 1999.

C. Abusive Relationships

Domestic violence has been another significant factor in Sherry and her children's lives. Sherry describes many of her relationships with men as abusive. In a March 1996 police report, Sherry stated that David E. "grabbed her by the arm, shook her and threw her onto her bed," and that when she landed on the bed, her head hit her nineteen-month-old son's head. Two months later, in May 1996, Sherry reported that David kicked her, smashed a cigarette into her face, and hit her. In November 1996 the court removed the children from their father's home in part because of reports of domestic violence between him and Sherry. Similarly, shortly after Amy's birth, the superior court committed her to DFYS's temporary custody in part based upon reports of domestic violence between Sherry and David. Sherry and David both obtained restraining orders against each other at different times. David testified that at one point, he moved with the children from hotel to hotel in Fairbanks to avoid confrontations with Sherry. During a 1997 psychological evaluation with Dr. Frank Nelson, Sherry said that when she was drinking she would sometimes yell, seream, and throw things at David.

Following Sherry's relationship with David, she became involved with a man named Robert whom she began dating in 1999. According to Sherry, Robert was abusive to her. During their relationship, Robert hit Sherry in the head with a space heater, which resulted in Sherry going to the hospital. Sherry stopped seeing Robert in July 2001.

Sherry then began seeing Jerry B. Sherry knew that Jerry had spent thirty years in and out of prison. Sherry testified that Jerry wanted to tell her about his past, but that because she was "going through a lot of stuff" she did not want to know. She testified that Jerry was treating her well. "I was trying to get my life together and I had just gotten out of a rotten relationship and I wasn't ready for one. And so that's when I said I didn't want to know all that right then." Sherry envisioned a future with Jerry that included his taking part in raising the children. Jerry joined Sherry in her visits with the children. However, she continued to avoid asking him about his past. "I figured he was treating me good, he was doing things for the kids, ... he wasn't an abusive person ... whatever he did in his past he did his time for it and he paid his price. So I ... didn't feel like I needed to dig into a whole bunch of details." But Jerry has been convicted of a number of serious felony offenses including sexual abuse of a minor. When Sherry learned of this offense, Jerry B. moved out. Because of his conviction, the public housing agency would not allow him to live in Sherry's apartment.

Even after learning of Jerry B.'s convietion for sexual abuse of a minor, Sherry was reluctant to sever ties with him. Additionally, Sherry seems to deny that Jerry is guilty of the offense. When asked at the termination trial whether she had been willing to sever ties with Jerry, Sherry replied: "There's been allegations and so far he hasn't been in here ... to testify to substantiate and if this is the case and this turns out to be true, yeah, because there is no way I'd have anybody like that doing anything like that to my children." During the termination trial in July 2002, Sherry was seen with Jerry at one of the R. children's soccer matches.

Because Sherry identified Jerry as her partner to JoAnne Simmerman, the DFYS social worker, Simmerman incorporated him into the R. family case plan in March 2002. Jerry told Simmerman that his thirty-year criminal history included assault, robbery, and car theft. He also told her that he had a history of drinking. Based upon this information, Simmerman requested that Jerry complete a substance abuse evaluation, a behavioral assessment to determine whether he needed anger management classes, and a family - assessment to - determine the strengths and weaknesses of Sherry and Jerry's relationship in terms of raising children. Simmerman also requested that Jerry submit to random urinalysis. According to Simmer-man, Jerry completed the requested evaluations, but he never submitted to urinalysis testing.

Sherry and David continue to argue, even though they are no longer living together. At a visit with the children at DFYS in May 2002, they fought over a video camera. During the confrontation, Adam crawled under a table. Thereafter, JoAnne Simmerman, the DFYS social worker, scheduled separate visits for David and Sherry and mandated that none of the adults-Sherry, Jerry, or David-argue in front of the children.

At the termination trial, Dr. Marti Cranor gave her opinions as to how Sherry's poor relationship choices could adversely affect the children. Dr. Cranor explained that in a home where the adults argue frequently and where there may be physical fights, it is difficult to maintain the routine that the children need. Additionally, Dr. Cranor explained that her greatest concern was that Sherry might focus on her relationship with her boyfriend to the detriment of the children's needs.

D. Procedural History

On January 2, 2002, DFYS filed a petition for termination of parental rights DFYS petitioned to terminate the rights of both David and Sherry; however, as David does not appeal the termination, we focus only on the facts relevant to Sherry. DFYS alleged that the R. children had been subjected to substantial physical and emotional harm and were at risk of substantial harm due to their parents' actions. The petition noted Sherry's long history of substance abuse, her ineffective attempts at treatment, her choice of abusive partners, and her psychological problems as barriers to being an effective parent. DFYS argued that Sherry had not remedied her conduct as she had not followed her case plan or the activities directed by the court. DFYS concluded that if the R. children were placed with either parent, the children would be in danger of significant emotional or physical harm. The petition noted: "Although [Sherry] is sincere in her desire to change her behaviors she has been unable to demonstrate that she has the ability to provide a safe and nurturing home for her children."

Trial on the petition for termination was held in Fairbanks between July 22 and July 26, 2002, and on August 2, 2002 before Superior Court Judge pro tem John Lohff. In his findings, the trial judge noted that "Iwlhile [Sherry] made tremendous progress in her substance abuse treatment, her sobriety is a relatively new thing in the ... history of this case." In addition, Judge Lohff noted that Sherry seemed unable "to face unpleasant realities such as the troubled past of her current partner and the diagnosis about the effects of alcohol on three of her children." The court also observed with regard to Sherry's substance abuse history: "[Sherry] is still fragile in her sobriety and that sobriety would be at great risk because of the immense needs of the children." Because the court concluded that Sherry was unable to safely and consistently care for her children, it terminated her rights and responsibilities with regard to her children. Sherry appeals.

III. STANDARD OF REVIEW

When reviewing a trial court's factual findings concerning the termination of parental rights, we apply the clearly erroneous standard of review. We find clear error only when our review of the entire record leaves us with "a definite and firm conviction that the superior court has made a mistake." We review de novo whether the superior court's factual findings satisfy applicable child in need of aid statutes and rules.

IV. DISCUSSION

A. The Trial Court Did Not Err in Concluding that Sherry Failed, Within a Reasonable Time, To Remedy the Conduct or Conditions in the Home that Place the R. Children at Substantial Risk of Physical or Mental Injury.

Parental rights may be terminated under AS 47.10.088 if the superior court finds by clear and convincing evidence that the child is in need of aid under AS 47.10.011 and that the parent:

(i) has not remedied the conduct or conditions in the home that place the child at substantial risk of harm; or
(i) has failed, within a reasonable time, to remedy the conduct or conditions in the home that place the child in substantial risk so that returning the child to the parent would place the child at substantial risk of physical or mental injury.

In making a determination whether the parent has remedied or will, within a reasonable time, remedy the conditions in the home that place the child at substantial risk, the court may consider any fact relating to the best interests of the child. Judge Lohff found that the children were in need of aid and that Sherry had failed, within a reasonable time, to remedy the conduct or conditions that placed the R. children at substantial risk of physical or mental injury. Accordingly, Judge Lohff terminated Sherry's parental rights.

Specifically, Judge Lohff found that the R. children are in need of aid under four statutory factors: AS 47.10.011(1) (abandonment); AS 47.10.011(8) (mental injury); AS 47,10.011(10) (substance abuse of the parent); and AS 47.10.011(11) (mental illness of the parent). In his ruling from the bench, Judge Lohff noted that Sherry

has made tremendous progress in her substance abuse although it's a year into it and with apparent complete success in terms of abstinence, it's still a new thing. We hope-all hope it continues to be a long term thing but it's not the complete availability for the children yet that we ... need.

Sherry does not contest the court's finding that her children are in need of aid. Rather, she contends that the trial court erred in concluding that she failed to remedy the conditions that placed her children at risk. Sherry argues that she has been sober "for a sufficient period of time to demonstrate her ability to remain sober" regardless of the stresses that she might encounter while raising her children.

Sherry argues that because she had been sober for approximately one year prior to the termination trial, she has remedied, within a reasonable time, the conduct or conditions that put her children at risk of harm. Sherry testified at the termination hearing that she had her last drink on July 27, 2001, and that since July 28, 2001, she has attended AA meetings regularly. Since her last drink, Sherry has submitted to random urinalysis testing. This evidence supports Sherry's contention that she maintained sobriety for a year prior to the start of the termination trial in July 2002.

However, as Judge Lohff noted, Sherry's sobriety is a relatively new phenomenon in her life. She has struggled with substance abuse and relapsed after treatment a number of times. Additionally, although she recognizes that she has had problems with alcohol, it is unclear the degree to which she accepts her problem.

Sherry argues correctly that her situation is distinguishable from S.H. v. State, Department of Health & Social Services, Division of Family & Youth Services. Unlike Sherry's maintenance of a year of sobriety, SH. admitted to using cocaine only four months before her termination hearing. Unfortunately, even though Sherry may have made strides towards remedying her conduct, the trial court could properly find that Sherry failed to address her substance abuse problem within a reasonable time. The superior court is entitled to rely on a parent's documented history of conduct as a predictor of future behavior. It seems that Judge Lohff relied upon Sherry's long history of substance abuse in making his determination. He commended her for her success, but noted that her sobriety is still very new.

Moreover, even since sobriety, Sherry has continued to make choices that affect her children's lives adversely, specifically, her romantic involvement with Jerry. Jerry has been convicted of child sexual assault. Concerning her relationship with Jerry, Sherry argues that she showed that she made the right choice by asking Jerry to move out of her apartment when she learned of his sex offenses. As the State correctly argues, the record refutes Sherry's assertions of good judgment. Despite the fact that Jerry wanted to share the details of his past with Sherry, she did not want to know because she was "going through a lot of stuff." At trial Sherry testified: "I figured he was treating me good, he was doing things for the kids, ... he wasn't an abusive person ... whatever he did in his past he did his time for it and he paid his price. So I ... didn't feel like I needed to dig into a whole bunch of details." Additionally, Sherry continued to see Jerry even after he moved out of the house. During the termination trial in July 2002, she was seen with him at one of the children's soccer matches. Sherry persisted in exposing her children to Jerry, despite her knowledge of Jerry's history of sexual abuse.

There is also evidence in the record that Sherry fails to recognize her children's special needs. Sherry argues that she acknowledges their needs, has gathered information about fetal aleohol exposure and its effects, and is prepared to meet her children's special needs. However, these arguments are refuted by the record. At trial, Sherry only admitted that her children's problems "could be" due to the fact that she drank while pregnant with them. When asked what she thought about the testimony of the three younger children's aleohol-affected diagnoses, she replied "I really don't know what to think." Sherry has tried to learn about fetal alcohol syndrome, but her testimony suggests that she does not fully accept or understand her children's disabilities.

As Judge Lohffs determination was not clearly erroneous, we affirm the superior court's conclusion.

v. CONCLUSION

Because the trial court did not clearly err in finding that Sherry R. failed to remedy the conduct or conditions that placed the R. children at substantial risk of harm, we AP-FIRM the trial court's decision to terminate Sherry R.'s parental rights.

      . We use pseudonyms to protect the family's privacy.

      . In terms of Sherry's experience with the Women and Children's Recovery Program in Fairbanks, two reports in the record present two slightly different versions of the facts. The facts recounted above reflect those described in the Annual Review of Child in Need of Aid Report, dated September 13, 1998. The Petition for Termination of Parental Rights differs in that it says that three weeks after Sherry successfully completed the inpatient and aftercare components of the Women and Children's Recovery Program, she relapsed and resumed using crack.

      . S.H. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 42 P.3d 1119, 1122 (Alaska 2002).

      . Id.

      . Id. at 1122-23.

      . AS 47.10.088(b).

      . - Sherry also makes an argument concerning her personality disorder, however, because we affirm the trial court's decision on other grounds, we do not address this argument.

      . 42 P.3d 1119 (Alaska 2002).

      . - Id. at 1122-24.


source: Caselaw Access Project

author: CARPENETI, Justice.

license: Public Domain

text:
    Brandywyn McELROY, Appellant, v. Albert KENNEDY, Appellee.
    No. S-10380.
    Supreme Court of Alaska.
    Aug. 1, 2003.

      Gloria Hanssen Hooper, Fairbanks, for Appellant.
    No appearance for Appelice.
    Before: FABE, Chief Justice, MATTHEWS, BRYNER, and CARPENETI, Justices.
   OPINION

CARPENETI, Justice.

I. INTRODUCTION

Albert Kennedy sued Brandywyn ("Bryn") MeElroy for return of child support that he had paid. He lost the case. In a second lawsuit, Kennedy obtained a judgment against McElroy that required her to return child support she had received from Kennedy. McElroy challenges the denial of her motion to dismiss the second lawsuit. Because we agree with McElroy that res judi-cata should have acted as a bar to relitigation of the restitution issue, we reverse the superior court's denial of her motion to dismiss. It is therefore unnecessary to reach the superior court's decision to grant summary judgment in favor of Kennedy.

II. FACTS AND PROCEEDINGS

Albert Kennedy and Bryn McElroy began dating in high school and maintained a romantic relationship for several years, but never married. During the summer of 1994, the couple briefly split, and McElroy engaged in sexual relations with another man, Terry Knear. In August or September of 1994 the couple resumed their relationship. McElroy gave birth to a son, Leon, on July 27, 1995. Kennedy signed papers at the hospital acknowledging his paternity of Leon, and he was subsequently listed on Leon's birth certificate as his father.

The couple separated in 1998, and apparently maintained some form of informal joint custody until March of 2000 when McElroy filed a complaint for child custody with the superior court in Fairbanks, in Case No. 4FA-00-587 Civil. She asked the court to award joint legal custody and to grant her child support. In his answer, Kennedy admitted he was Leon's father, agreed that the parties should share legal custody and counterclaimed for primary physical custody. While Kennedy and McElroy awaited the court's order, the Child Support Enforcement Division (CSED) issued a child support order against Kennedy on April 26, 2000, requiring him to pay McElroy $404 per month effective June 1, 2000 and $9,262 in back child support for the time between July 1998 and May 2000. Kennedy did not contest either the amount of support or the finding of paternity. He paid the ordered amounts on May 25. On July 24, 2000 Superior Court Judge Niesje J. Steinkruger granted MeElroy's motion for temporary shared custody, establishing an approximate 43/57 custody split and granting MeElIroy $93.81 per month in child support to be paid by Kennedy. The court made the support order effective February 1, 2000, so it covered six months of back support by the time it was issued. A trial date was set for October 28.

In the meantime, at the urging of Kennedy's current wife, Kennedy and Leon underwent voluntary paternity testing in June of 2000 without McElroy's knowledge. In July Kennedy learned he was not Leon's biological father. Based on this information, Kennedy decided he no longer wanted to be a part of Leon's life. On August 9, 2000 Kennedy moved the court to legally disestablish his paternity, terminate his legal duty to support Leon, require McElroy to reimburse him for support paid between February and June 2000, direct CSED to cease collection efforts against him, and change Leon's last name from McElroy-Kennedy to McElroy. In the memorandum filed in support of his motion, Kennedy asked the court to vacate the temporary child custody and support order under Alaska Civil Rule 60(b)(5), thereby providing him with prospective relief, He also asked for retrospective relief in the form of reimbursement of either all the financial support received by McElroy between February 1 and June 1, 2000, or the difference between the amount Kennedy was ordered to pay by the court ($98.81 per month) and the amount he was ordered to pay by CSED ($404 per month).

McElroy did not object to Kennedy's motion to disestablish paternity, but she did challenge his claim for reimbursement of support. She argued that because Kennedy was Leon's legal father during the period of time in question, he was not entitled to reimbursement of child support payments made prior to the disestablishment of his paternity. After considering Kennedy's and MceElroy's arguments regarding the equities in the case, Judge Steinkruger issued an Order Regarding Paternity and Support, granting Kennedy's motion in part, but rejecting his request for reimbursement from McElroy and refusing to set aside CSED's order because CSED was not a party to the case. In her dismissal order of September 5, 2000, Judge Steinkruger terminated Kennedy's future child support obligations pursuant to the temporary order she had issued, changed Leon's last name, and dismissed the action with prejudice.

Rather than appealing Judge Steinkruger's decision, Kennedy moved for reconsideration, arguing that the superior court had overlooked or failed to consider an applicable statute in reaching its decision. Because his motion for reconsideration was late, Kennedy also filed a Motion to Accept Late Filing of Motion for Reconsideration, arguing that overlooking the relevant statute constituted good cause for the late filing. The court determined that this did not constitute good cause, and denied the motion without prejudice, instructing Kennedy that he could refile with good cause shown. He did not do so, nor did he appeal.

On November 16, 2000 Kennedy instituted a new case, No. 4FA-00-2578 Civil, Naming both McElroy and CSED as defendants, he sought to vacate the CSED administrative order of child support and obtain restitution of all of the child support he had already paid. The case was assigned to Superior Court Judge Ralph R. Beistline. In the complaint, styled as a "Petition," Kennedy cited the "newly discovered evidence of Mr. Kennedy's non-paternity [which] now makes it apparent that CSED's judgment was obtained by the fraud, misrepresentation or other misconduct of Bryn McElroy, or by mistake, inadvertence, surprise or excusable neglect on the matter of Mr. Kennedy's paternity." MeElroy answered in January 2001, asserting the affirmative defenses of res judicata and/or collateral estoppel, lach-es, waiver, and failure to state a claim upon which relief may be granted. In February she filed a motion to dismiss on res judicata grounds. Judge Beistline summarily denied MecElroy's motion to dismiss in March. Kennedy then moved for summary judgment and his motion was granted on September 17.

McElroy appeals the trial court's denial of her motion to dismiss and its granting of summary judgment to Kennedy. Kennedy has not appeared.

III. STANDARD OF REVIEW

We review a motion to dismiss de nmovo. The question whether res judicata or collateral estoppel applies is a question of law, which we also review de novo.

IV. DISCUSSION

The Superior Court Erred in Denying McElroy's Motion To Dismiss Action as Res Judicata.

Judge Beistline summarily denied MeE!-roy's motion to dismiss Kennedy's petition. McElroy argues that Judge Steinkruger's decision in her Order Regarding Paternity and Support should have operated as a bar to Kennedy's petition for restitution of child support on any basis. Kennedy has failed to file a brief in this appeal, but in his Memorandum in Support of Opposition to Motion to Dismiss Action as Res Judicata filed with the superior court, he argued that the second action was proper because he was asserting an independent justification for reimbursement of child support, he was directly attacking the final child support order for the first time, and he had added a second party to the action.

"Res judicata consists of both claim preclusion and issue preclusion." Claim preclusion "prevents a party from suing on a claim which has been previously litigated to a final judgment by that party ... and precludes the assertion by such parties of any legal theory, cause of action, or defense which could have been asserted in that action." We have held that "a final judgment in a prior action bars a subsequent action if the prior judgment was (1) a final judgment on the merits, (2) from a court of competent jurisdiction, (3) in a dispute between the same parties (or their privies) about the same cause of action."

Whereas claim preclusion bars the litigation of any cause of action arising out of a claim which has already been litigated, issue preclusion, or collateral estoppel, renders an issue of fact or law which has already been decided by a court of competent jurisdiction conclusive in a subsequent action between the same parties, whether on the same or a different claim. To determine whether issue preclusion applies, we ask whether:

(1) the party against whom the preclusion is employed was a party to or in privity with a party to the first action;
(2) the issue precluded from relitigation is identical to the issue decided in the first action;
(8) the issue was resolved in the first action by a final judgment on the merits; and
(4) the determination of the issue was essential to the final judgment.[]

Because we hold that Kennedy's second action against McElroy is barred by claim preclusion, we need not reach MecElroy's argument regarding issue preclusion.

1. Final Judgment on the Merits

There is no dispute that Judge Stein-kruger's Order Regarding Paternity and Support and Order of Dismissal operated as a final judgment on the merits. Following briefing by the parties, Judge Steinkruger disestablished Kennedy's paternity, ordered his name removed from Leon's birth certificate, and legally changed Leon's last name to McElroy. In addition, Judge Steinkruger rejected Kennedy's request for reimburse, ment of child support in the amount of $1,429.91, declined to order CSED to cease child support collection efforts against Kennedy since CSED had not been named as a party to the action, and denied Kennedy's request for appointment of a guardian ad litem to protect Leon's interests. In the accompanying Order of Dismissal, Judge Steinkruger dismissed the action with prejudice and vacated the scheduled trial and pretrial conference. There is no question that these actions constituted a final judgment on the merits.

2. Court of Competent Jurisdiction

Similarly, there is no question that the superior court is a court of competent jurisdiction.

3. Same Parties and Same Cause of Action

The same parties were indisputably involved in both actions. While it is true that Kennedy added CSED as a defendant in the case seeking to vacate CSED's administrative order of child support and for restitution of child support, the mere addition of a see-ond party does not change the fact that both McElroy and Kennedy were parties to the first action and both were bound by its results. And while Kennedy was required to sue CSED to prospectively prevent collection of child support from him, he could and did request reimbursement of child support paid to McElroy pursuant to CSED's order in the context of the first proceeding. Adding CSED as a party does not lessen the res judicata effect of Judge Steinkruger's decision.

With respect to the "same cause of action" requirement, we employ a transactional analysis to determine what constitutes a cause of action barred from relitigation by res judica-ta. As explained in § 24(2) of the REestatEMENT (SEconp) or JunemEnTts (1982),

[wlhat factual grouping constitutes a "transaction", and what groupings constitute a "series", are to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage.[]

Where more than one claim arises from the same transaction or series of transactions, they must all be prosecuted in a single legal action or be lost.

In the action before Judge Steinkruger, Kennedy asked for partial restitution, either for the amount of child support paid for the period between February and June 2001 pursuant to the CSED order, or for the difference between the amount required by the CSED order and Judge Steinkruger's Order Granting Motion for Temporary Shared Custody. While Kennedy did not explicitly state the basis for this request for restitution, he seems to have been arguing that such reimbursement would be equitable given the fact that he was found not to be Leon's biological father. As Kennedy explained:

CSED calculated Mr. Kennedy's child support obligation at $404 per month and based his arrears on this amount. Between February 1 and June 1, 2000, the plaintiff received $2,020 in child support. Because the paternity test shows that Mr. Kennedy is not the child's father, the plaintiff should reimburse Mr. Kennedy this entire amount.
If the court will not order the plaintiff to reimburse Mr. Kennedy all of the child support she received between February 1 and June 1, she should reimburse Mr. Kennedy the difference between the amount he was ordered to pay by this court ($98.81 per month) and the amount he actually paid ($404 per month).

While Kennedy did not explicitly raise fraud as a basis for restitution in his motion to disestablish paternity, he did intimate in his reply brief that it was a factor in his decision to seek restitution.

In the second action, before Judge Beist-line, Kennedy asked for restitution of all child support paid pursuant to CSED's retroactive order on the ground that he was asserting "an independent justification for reimbursement of child support, namely that McElroy defrauded him and misrepresented that he was the child's father." He referred to the basis of his second complaint as "newly discovered evidence of Mr. Kennedy's non-paternity." While this evidence may have been discovered after the entry of the support order against him, Kennedy was well aware of that evidence as well as the alleged fraud and misrepresentation at the time he litigated his motion to disestablish paternity in Judge Steinkruger's court.

Both of these actions were therefore based on the same underlying facts and transactions. As McElroy notes:

The facts at the basis of both claims are closely related, indeed identical, in 'time, space, origin, and motivation and form a convenient trial unit'. The precise facts, evidence and witnesses which would have been necessary to a trial in the first case (had Albert requested a hearing on his claim for partial reimbursement of child support) are required in the restitution case.

While Kennedy did not explicitly accuse McElroy of fraud in the context of the first action, his allegations in the second proceeding were based on information available to him at the time the first action was filed. Our case law has made clear that where a party has had ample opportunity to litigate an issue, "the fact that he chose not to, whether 'because of a strategic decision or ignorance or other reason,' does not exempt him from the principles of res judicata." Because Kennedy could have pursued his claim of fraud or misrepresentation in the action before Judge Steinkruger but for whatever reason chose not to, he is barred by res judicata from doing so here.

Kennedy further argued that the second action was not barred by res judicata because he was challenging for the first time the validity of CSED's child support order. Kennedy found justification for this position

in Dixon v. Pouney, in which the superior court rejected Irvin Dixon's attempt, upon finding out that he was not a child's biological father, to file a motion for relief from a divorce decree naming him the father of the child of the marriage. The superior court reasoned that while the issue of paternity had not actually been litigated in the context of the divorce proceeding, it could have been, and therefore, Dixon was precluded from relitigating it at a later point in time. We rejected that analysis, holding that because Dixon's motion constituted a direct attack on the divorce decree of the type specifically contemplated by Rule 60(b), it could not be barred by res judicata.

Kennedy argued below that "[this case represents a direct attack on [the CSED] order that is being made now for the very first time. Mr. Kennedy has not previously sought to attack any order or decree on child support. The fact that he requested partial reimbursement of child support due to conflicting child support orders in no way represents a 60(b) motion or an attack on any order or judgment." This "direct attack" argument does not lend any further support to Kennedy's claims against McElroy. McElroy has never challenged Kennedy's right to have CSED's order set aside under Rule 60(b). Her only objection has been to reimbursing child support already paid to her pursuant to that order, The validity of CSED's order was not properly before Judge Steinkruger because CSED was not named as a party to that action, and therefore the decision in the first action can have no pre-clusive effect as to CSED. However, whether McElroy must reimburse Kennedy for child support paid has already been decided. Any arguments Kennedy may have had with respect to that claim should have been brought during the pendency of the first action.

Whether Judge Steinkruger was correct in her decision in 4F A-00-587 is not before us at the present time. If Kennedy disagreed with the court's decision, he could have appealed it. Instead he chose to file a second action in 4FA-00-2578 asserting claims based on the same set of facts and transactions Judge Steinkruger had already issued a ruling on. Because Kennedy could have raised the issues of fraud or misrepresentation in the first proceeding, res judicata bars him from doing so in the second.

v. CONCLUSION

Res judicata bars any causes of action related to restitution, which could have been decided by Judge Steinkruger in 4FA-00-587, from being raised in the new action, 4FA-00-2578, before Judge Beistline. Accordingly, we REVERSE the denial in 4FA-00-2578 by Judge Beistline of MceElroy's motion to dismiss on res judicata grounds. We REMAND with instructions to DISMISS Kennedy's case.

EASTAUGH, Justice, not participating.

      . Alaska Civil Rule 60(b)(5) provides for relief from a "final judgment, order, or proceeding" where "it is no longer equitable that the judgment should have prospective application|.]"

      . While the CSED award became effective on a monthly basis on June 1, 2000, the lump sum of back support included the period between February 1 and June 1. Because Kennedy believed the superior court's judgment had modified CSED's order, he argued that he had overpaid child support during that time.

      . Because we reverse the superior court's denial of McEiroy's motion to dismiss, we do not reach the superior court's decision to grant summary judgment to Kennedy.

      , Nunez v. Am. Seafoods, 52 P.3d 720, 721 (Alaska 2002).

      . Rapoport v. Tesoro Alaska Petroleum Co., 794 P.2d 949, 951 (Alaska 1990); Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979).

      . Dixon v. Pouncy, 979 P.2d 520, 523 (Alaska 1999).

      . Id. (quoting Moor®'s Feperat - Practice § 131.10[1][a] (3d ed.1997) (alteration in original)). See also Restatement (SEconp) or Jupaments § 24(1) (1982) (expansively defining claim extinguished by valid and final judgment on merits as including "all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose").

      . Plumber v. Univ. of Alaska Anchorage, 936 P.2d 163, 166 (Alaska 1997) (citing Blake v. Gilbert, 702 P.2d 631, 634-35 (Alaska 1985), overruled on other grounds by Palmer v. State, 770 P.2d 296 (Alaska 1989)).

      . RestatemENt (Srcowp) or Jupoments § 27 (1982).

      . Renwick v. State, Bd. of Marine Pilots, 971 P.2d 631, 634 (Alaska 1999).

      . While Kennedy asked Judge Steinkruger to order CSED to cease child support collection efforts against him, she declined to do so because CSED was not named as a party to the first action. Instead, Judge Steinkruger instructed Kennedy to independently seek relief in his administrative case.

      . Plumber, 936 P.2d at 167.

      . See also White v. State, Dep't of Natural Res., 14 P.3d 956, 959-60 (Alaska 2000).

      . In his Reply to Memorandum of Qualified Non-Opposition to Motion to Disestablish Paternity and Opposition to Child Support Reimbursement filed before Judge Steinkruger, Kennedy maintained that "[hlad the plaintiff been forthright and truthful five years ago, Mr. Kennedy would have pursued this matter much sooner...." He also stated that "(hle had no first hand knowledge of any intimate relationships that the plaintiff may have been involved with at the time Leon was conceived, and in fact, never questioned the plaintiff's word regarding this issue.

      . White, 14 P.3d at 961-62 (quoting Plumber, 936 P.2d at 168).

      . 979 P.2d 520 (Alaska 1999).

      . Id. at 522.

      . Id. at 522-23.

      . - Id. at 524.

      . Kennedy's motion for reconsideration was brought within the time for appeal. As such, he could have appealed Judge Steinkruger's decision rather than requesting reconsideration. Additionally, Kennedy could have appealed the denial of his motion for reconsideration. Finally, Kennedy could have brought a motion to set aside Judge Steinkruger's order under Civil Rule 60(b)(1) on the basis of mistake of law. We express no opinion on the question whether Kennedy may still seek relief on Rule 60(b) grounds in 4FA-00-587 or on the merits of the underlying claim.


text:
    Thomas TESENIAR, Appellant, v. Lynda SPICER, f/k/a Lynda Teseniar, Appellee.
    Nos. S-10632, S-10685, S-10686.
    Supreme Court of Alaska.
    Aug. 1, 2003.

      Thomas A. Teseniar, pro se, Jefferson City, Missouri, Appellant.
    No appearance by Appellee.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

FABE, Chief Justice.

I. INTRODUCTION

Thomas Teseniar challenges the superior court's modification of his child support obligation, claiming that the superior court lacked jurisdiction under the Uniform Interstate Family Support Act, erred by increasing his obligation without applying Alaska Civil Rule 90.3, and erred by making the increase retroactive to April 15, 1999. Tes-eniar also appeals the superior court's decision concerning the amount of unreimbursed medical costs for which he is liable, the court's order that he must deposit funds into his children's educational accounts, and the court's award of attorney's fees to Lynda Spicer. We hold that the superior court erred in retroactively increasing Teseniar's obligation to April 15, 1999 and in failing to perform Rule 90.3 calculations in setting the amount of support. We affirm the remainder of the challenged rulings.

IL FACTS AND PROCEEDINGS

Thomas Teseniar and Lynda Spicer married in Anchorage in 1995. They had two children: Samantha, born in January 1996, and Robert, born in October 1997. Teseniar and Spicer separated in August 1997. Tes-eniar moved to Missouri in March 1998; Spi-cer and the children stayed in Alaska. In November 1998 Superior Court Judge Brian C. Shortell granted the parties a decree of divorce and issued findings of fact and conclusions of law incorporating the parties' settlement of all disputed issues. The parties agreed that Spicer would have sole legal and primary physical custody of the children and agreed on an initial child support arrangement. In February 1999 the court issued its child custody and support order, based on the parties' agreement, decrecing that Tes-eniar was to pay $257 per month in child support. -In July 1999 Judge Shortell issued a new child custody and support order incorporating more clearly the provisions of the parties' settlement agreement. One of the terms of the settlement agreement was that Teseniar was to send his tax returns to the Child Support Enforcement Division (CSED) each year "by the earlier of his IRS filing or April 15."

On March 8, 2000, Spicer moved to modify child support and moved for a finding of contempt for Teseniar's failure to provide her with his tax returns. Although Teseniar eventually filed an opposition to this motion, his opposition was not timely, and one day before it was received, Judge Shortell granted Spicer's motion to modify Teseniar's monthly support obligation retroactive to April 15, 1999. The exact amount of the modified support obligation was to be determined in the future. In August 2000 Superi- or Court Judge Karen L. Hunt issued an order increasing Teseniar's monthly child support obligation to $778.91, basing the amount on the Palmer superior court's calculation of Teseniar's child support obligation for two children from a previous marriage. Judge Hunt made the new monthly support amount retroactive based on Judge Shortell's order.

At a hearing in October 2000, Superior Court Judge Milton M. Souter ordered the state to provide copies of Teseniar's tax returns to Spicer. Judge Souter also heard arguments about child support and unpaid medical expenses. At a November 2000 hearing, the parties presented evidence and further arguments on these issues. In April 2001 Superior Court Judge Sharon L. Gleason issued an order finding $658.61 in un-reimbursed medical expenses for the parties' children for 1999 and 2000 and ordering Tes-eniar to pay Spicer half this amount. Judge Gleason also awarded Spicer attorney's fees.

In September 2001 Judge Gleason denied Teseniar's motion for Spicer to reimburse the children's educational accounts for the Permanent Fund Dividends (PFDs) that she was supposed to, but allegedly had not, deposited; instead, Judge Gleason ordered Teseniar to deposit funds into the accounts.

In December 2001 Teseniar moved to vacate Judge Hunt's support modification order and to strike Spicer's motion for modification, alleging that they were inconsistent with the Uniform Interstate Family Support Act (UIFSA). Judge Gleason denied this motion and then granted Spicer attorney's fees.

Teseniar has filed three appeals which we have consolidated, challenging: (1) the child support modification order, with attorney's fees; (2) the unpaid medical costs order, with attorney's fees; and (8) the order concerning reimbursement of the children's educational accounts.

III. DISCUSSION

A. The Superior Court Had Jurisdiction Under the Uniform Interstate Family Support Act.

Teseniar argues that Judge Gleason erred by denying his motion to vacate Judge Hunt's August 2000 child support modification order and to strike Spicer's March 2000 motion for modification because the superior court lacked personal and subject matter jurisdiction in accordance with the UIFSA, adopted in Alaska as AS 25.25. Teseniar contends that the superior court did not have personal jurisdiction over him and did not have subject matter jurisdiction to modify the child support order after he moved to Missouri in 1998. We exercise our independent judgment when reviewing a superior court's interpretation and application of a statute, "adopting the rule of law that is most persuasive in light of precedent, reason, and policy."

The UIFSA defeats Teseniar's argument. Alaska Statute 25.25.201 provides a variety of alternative bases for personal jurisdiction over a non-resident in a proceeding to modify a support order; there is jurisdiction if the non-resident individual (1) "submits to the jurisdiction of this state by consent, by entering a general appearance, or by filing a responsive document having the effect of waiving any contest to personal jurisdiction"; (2) "resided with the child in this state"; (8) "resided in this state and provided prenatal expenses or support for the child"; or (4) "engaged in sexual intercourse in this state and the child may have been conceived by that act of intercourse[.]" Teseniar participated in support proceedings here for several years, including the period of more than a year between the modification order and his motion to vacate it. He lived in Alaska with Samantha, agreed to pay for Spicer's expenses relating to her pregnancy with Robert and Robert's birth, and presumably conceived the children here. The superior court thus had personal jurisdiction over Teseniar.

Alaska Statute 25.25.205 makes clear that the superior court also had jurisdiction over the support order. That statute provides that a tribunal of this state will have continuing, exclusive jurisdiction over' a support order it issues "as long as this state remains the residence of the obligor, the individual obligee, or the child for whose benefit the support order is issued" or "until each individual party has filed written consent with the tribunal of this state for a tribunal of another state to modify the order and assume continuing, exclusive jurisdiction." Spicer and the children still reside in Alaska, and the parties filed no written consent for another state to modify the order. The statute does state that an Alaskan tribunal cannot modify a support order "if the order has been modified by a tribunal of another state under a law substantially similar to this chapter." But while the order was registered in Missouri, the Missouri court did not modify the support order. Alaska thus maintained jurisdiction.

Teseniar relies on section 611 of the UIF-SA for his argument that the Alaska courts lacked subject matter jurisdiction because Spicer was required to file her modification motion in the state of residence of the obli-gor, namely Missouri. .Teseniar's focus on AS 25.25.611 and the comparable Missouri provision is irrelevant, however, because when a court exercises personal jurisdiction over a non-resident, AS 25.25.301-.701 do not apply except for two small exceptions that are unrelated to this case. Furthermore, this reliance is misplaced. Alaska Statute 25.25.611 and Missouri Statute 454.978 basically say: When a support order issued in another state has been registered in this state, a tribunal of this state may modify the order only if (1) none of the parties or the children live in the issuing state, the petitioner is a non-resident seeking modification, and a tribunal of this state has personal jurisdiction over the respondent; or if (2) a tribunal of this state has personal jurisdiction over the child or one of the parties and all of the parties have filed written consent in the issuing tribunal that a tribunal of this state may modify the order and assume continuing, exclusive jurisdiction over it. The issuing state in this case is Alaska. Because Spicer and the children live in Alaska and there has been no written consent, Missouri could not modify the order under its statute. Because Alaska therefore retains continuing, exclusive jurisdiction, Judge Gleason did not err in denying Teseniar's motion to vacate Judge Hunt's modification order and to strike Spi-cer's motion for modification due to lack of jurisdiction under the UIFSA,

B. The Superior Court Abused Its Discretion When Modifying the Child Support Order.

Teseniar contends that the superior court erred both by increasing his child support obligation in retaliation for his refusal to supply Spicer with his tax returns and by making the order retroactive to April 15, 1999. In her March 8, 2000 motion to modify, Spicer sought to increase Teseniar's support obligation effective April 15, 1999 because she maintained that he was supposed to provide tax documents by then for purposes of recalculating support. In her memorandum in support of that motion, she asked in the alternative to make the support award effective as of the filing of the motion on March 8, 2000. The proposed order she submitted contained the April 15 date, and despite striking a proposed finding of contempt for failure to file tax returns, Judge Shortell signed this order with the retroactive April 15 date still intact. When Judge Hunt later presided over the case, she increased Teseniar's obligation from $257 a month to $778.91 to conform to the rate calculated by the Palmer superior court in February 1999 for Teseniar's children from a prior marriage, and she made this increase effective April 15, 1999 in conformity with Judge Shortell's order.

We review modifications of child support under an abuse of discretion standard. "We will find an abuse of discretion when our review of the record leaves us with a 'definite and firm conviction based on the record as a whole that a mistake has been made.' " We conclude that both the amount of the increase and the date of retroactivity constituted abuses of discretion.

1. Increase in child support obligation

Judge Hunt arrived at Teseniar's child support obligation by adopting the Palmer court's child support obligation figure for Teseniar's children from a prior marriage, not merely the other court's estimation of Teseniar's income. By adopting the Palmer court's monthly obligation figure, Judge Hunt did not go through the Rule 90.8 calculations using Spicer's income and allowing deductions such as the child support Teseniar paid for his prior children as provided in Rule 90.3(a)(1)(B). It is unlikely that Tes-eniar's obligation to his two children with Spicer would be identical to his child support obligation to the children from his earlier marriage, given that the prior obligation would be factored into the calculation of his current obligation. "Courts must follow the legal standards set forth in Rule 90.8 in determining awards of child support. 4 We therefore conclude that it was an abuse of discretion for Judge Hunt to increase Tesen-iar's obligation to correspond to the Palmer court's child support obligation figure.

2. Retroactive modification

"[Albsent special cireumstances .., 'courts may not retroactively modify support orders." " Retroactive modification is statutorily permitted only "when paternity is disestablished and the modification can be implemented without violating federal law, or on the motion of the obligor when there is a clerical mistake or the support order is based on a default amount." Neither of those exceptions is applicable here. Rule 90.3(h)(2) provides, however, that although retroactive modification is generally prohibited, "[al modification which is effective on or after the date that a motion for modification ... is served on the opposing party is not considered a retroactive modification." By this standard, and as Spicer was apparently aware given the alternative relief she requested, Judge Shortell could not have made Teseniar's child support obligation effective any earlier than March 8, 2000, when Spicer filed her motion to modify. Judge Shortell therefore erred in failing to correct that portion of the proposed order making the obligation effective April 15, 1999.

We note that Judge Shortell struck the proposed finding of contempt from his order, making it unlikely that the retroactivity was meant to be a discovery sanction. However, to the extent that it was meant to be a sanction under Civil Rule 87 for Teseniar's failure to provide Spicer with his tax returns, we observe that the parties' agreement required Teseniar to provide his tax return annually only to CSED, not to Spicer.

C. The Superior Court Did Not Err in Calculating the Amount of Unpaid Medical Costs Teseniar Owed Spicer for 1999 and 2000.

Teseniar asserts that Judge Gleason erred in assessing the documentary evidence he submitted concerning unreimbursed medical costs and departed from the parties' agreement as a result. We review under the clearly erroneous standard a superior court's factual findings.

Spicer moved for Teseniar to pay for his half of the children's medical expenses that had not been covered by insurance. Judge Souter directed Teseniar to file with the court a print-out from his health insurance company showing all claims for the children submitted in 1999 and 2000. The documentation that the company provided showed that Spicer had submitted fourteen claims in 1999 and none in 2000. Judge Cleason concluded that the documentation was incomplete because it indicated that it only included reimbursement regarding medical emergency facilities but did not include claims for other expenses such as medications. Judge Gleason therefore relied upon the documentation Spicer had submitted, which consisted of bills, statements, and receipts, and calculated the total costs to be $658.61, for which Teseniar would be liable for half.

Teseniar counters that his documentation is complete and accurate and that no documentation exists for medications or other services because Spicer failed to submit any other claims. Accordingly, he relies on paragraph 19 of the parties' agreement, which provides as follows: "[Spicer]l will be required to apply all known health care coverage options and submit all known claims to the care provider. Coverage benefits sacrificed due to [Spicer's] future failure to submit claims to known carriers when and as required will be [Spicer's] exclusive expense." He therefore calculates that there were only $336.76 of uncovered costs submitted by Spi-cer, of which he is liable for half. The difference between Judge Gleason's calculation of Teseniar's liability and Teseniar's calculation is $160.92.

"It is the function of the trial court, not of this court, to judge witnesses' credibility and to weigh conflicting evidence." Because this is a factual question, and because the superior court's resolution was not clearly erroneous, we affirm Judge (Gleason's decision to view Teseniar's documentation as incomplete and to instead use Spicer's.

D. The Superior Court Did Not Abuse Its Discretion in Ordering Teseniar To Reimburse the Children's Educational Accounts.

Teseniar charges that Judge Gleason abused her discretion in departing from the divorce decree by ordering him to deposit $1,924.85 into each of the children's educational accounts when it was Spicer who had failed to deposit the children's permanent fund dividends. Accepting Spicer's claim that she needed the PFD funds to support the children because Teseniar was thousands of dollars in arrears on child support, Judge Gleason determined that having Teseniar deposit the money as an offset against his child support arrearages would serve the dual goals of getting the children the PFDs to which they were entitled and getting Spicer the child support to which she was entitled. Teseniar maintains that Judge Gleason's justification for letting Spicer keep the children's PFDs is outside the scope of the specific valid reasons for withdrawals from the children's educational accounts detailed in paragraph 7 of the parties' settlement agreement.

The agreement dictates that the children's PFD funds are to be deposited in educational accounts with Spicer as custodian. No funds can be withdrawn before the children reach majority except for: (1) payment of dividends or capital gains tax; (2) any reason with Teseniar's consent; or (8) uncovered major medical or other similar emergency uses, in which case Spicer must provide Tes-eniar with proof of the expenses. Judge (Gileason recognized this limitation when rejecting Spicer's later attempt to use the PFD funds for the "everyday care and support of the children," noting that such a use falls outside the bounds of the agreement but that "good cause could also be established upon proof of current outstanding arrears on child support and other necessary expenses of the children."

"Certainly superior courts have authority to modify a child support order. Alaska Statute 25.24.170 confers broad authority to do so." That statute provides for modification of child support, child eusto-dy, and alimony. "An order may be modified notwithstanding the fact that it was based on a separation agreement or stipulation signed by the parties." It was within Judge Gleason's discretion to depart from the parties' settlement agreement, as incorporated in the court's original custody findings, to ensure that both Spicer and the children received the benefits intended for them by those findings. We therefore affirm Judge Gleason's order concerning the children's educational accounts.

E. The Superior Court Did Not Abuse Its Discretion by Ordering Awards of Attorney's Fees to Spicer.

Teseniar contends that Judge (Gleason's attorney's fees awards are unfair because he has the right under the U.S. Constitution to due process and thus should not be penalized for seeking review of lower court orders. We review for abuse of discretion a superior court's order to pay another party's attorney's fees. "The trial court's discretion in awarding attorney's fees is broad and its decision will not be disturbed on appeal unless it is 'arbitrary, capricious, manifestly unreasonable, or stems from an improper motive. "

There is no indication that Judge (Gleason awarded attorney's fees as a penalty for appealing to this court; rather, it appears the award was meant to compensate Spicer for some of her expenses incurred in responding to only some of the numerous motions filed by both sides in this case. Teseniar's right to due process was in no way infringed by the attorney's fees awards, and those awards were not arbitrary or capricious. Accordingly, Judge Gleason did not abuse her discretion by awarding Spicer attorney's fees.

IV. CONCLUSION

Because the superior court did not undertake its own Rule 90.3 calculations when modifying Teseniar's child support obligation, and because it impermissibly made the obligation retroactive to a date preceding the date of the motion to modify, we REVERSE the superior court's order increasing Tesen-iar's obligation effective April 15, 1999 and REMAND for calculation of Teseniar's obligation under Rule 90.8 to be effective no earlier than March 8, 2000. We AFFIRM the remainder of the challenged rulings.

      . Fleegel v. Estate of Boyles, 61 P.3d 1267, 1270-71 (Alaska 2002) (internal quotations omitted).

      . Teseniar's submission to Alaskan jurisdiction can also be found in his opposition to Spicer's motion to modify support, in which he noted that he was fighting Spicer's attempt to register the decree in Missouri. Teseniar described Spicer's attempt as "inappropriate" and "wrong," said there was "no logical reason to move enforce» ment to Missouri," and maintained that Spicer should be ordered to work with Teseniar through Alaska CSED to solve any disputes on support.

      . AS 25.25.205(a)(1), (2); see also State, Child Support Enforcement Div. v. Bromley, 987 P.2d 183, 188-89 (Alaska 1999).

      . AS 25.25.205(b).

      . See Mo.RevSmar § 454.946-.953, .971-.973 (1997) (explaining registration of order for enforcement and restrictions on modification, which have not been satisfied here).

      . AS 25.25.611 in Alaska, Mo.Rev.Stat. § 454.973 (1997) in Missouri.

      . AS 25.25.202 (allowing tribunal to "apply AS 25,25.316 to receive evidence from another state and AS 25.25.318 to obtain discovery through a tribunal of another state").

      . State, Dep't of Revenue, Child Support Enforcement Div. ex rel. Wallace v. Delaney, 962 P.2d 187, 191-92 (Alaska 1998) (concluding that Alaska retained exclusive jurisdiction over support order and that CSED could collect interest from obligor because obligor's child "still resides in Alaska, the issuing state; thus, Washington could not have modified the support order"); cf. State, Child Support Enforcement Div. v. Bromley, 987 P.2d 183, 188-89 (Alaska 1999) (holding that Alaska court could modify Maine support order because parents and child no longer resided in Maine, obligee was not resident of Alaska and sought modification here, and obligor was subject to personal jurisdiction of Alaska tribunal).

      . The cases and commentary Teseniar cites in support of his argument concern only situations in which "the issuing State no longer has an interest in exercising its continuing, exclusive jurisdiction to modify its order," such as when both parties and the children have moved out of the issuing state. See, eg., In re Marriage of Abplanalp, 27 Kan.App.2d 833, 7 P.3d 1269, 1270 (2000); Groseth v. Groseth, 257 Neb. 525, 600 N.W.2d 159, 166 (1999). As explained above and as elaborated in the sections of the commentary to UIFSA § 611 that precede the sections quoted by Teseniar in his brief, Alaska still has "an interest in exercising its continuing, exclusive jurisdiction to modify its order" because Spicer and the children reside in Alaska. See Unie. Interstatr Famuy Suprort Act § 611 (amended 2001), 9 LB. U.L.A. 96, cmt. at 97-98 (Supp.2003).

      . Flannery v. Flannery, 950 P.2d 126, 129 (Alaska 1997).

      . Beaudoin v. Beaudoin, 24 P.3d 523, 526 (Alaska 2001) (quoting Kowalski v. Kowalski, 806 P.2d 1368, 1370 (Alaska 1991)).

      . Rule 90.3(a)(1)(B) provides for a deduction from a parent's total income for "child support and alimony payments arising from prior relationships which are required by other court or administrative proceedings and actually paid."

      . While not ruling on the correctness of CSED's calculation, we note in passing that CSED calculated that Teseniar's child support obligation based on his 1999 tax return should be modified to be $639 per month.

      . Marine v. Marine, 957 P.2d 314, 316 (Alaska 1998).

      . See Monette v. Hoff, 958 P.2d 434, 437 (Alaska 1998) (remanding because unclear if superior court adopted CSED's calculation or conducted required de novo determination of child support obligation); Keating v. Traynor, 833 P.2d 695, 696-97 (Alaska 1992) (holding that court erred by adopting parties' original privately stipulated support amount instead of modifying support award based on current income in accordance with Rule 90.3).

      . State, Child Support Enforcement Div. v. Bromley, 987 P.2d 183, 188 (Alaska 1999) (quoting Hendren v. State, Dep't of Revenue, Child Support Enforcement Div., 957 P.2d 1350, 1352 (Alaska 1998)); Alaska R. Civ. P. 90.3(h)(2).

      . Hendren, 957 P.2d at 1352 (citing AS 25.27.166(d) and AS 25.27.195).

      . - Alaska R. Civ. P. 90.3(h)(2); see also Wright v. Wright, 22 P.3d 875, 878-79 (Alaska 2001).

      . Vezey v. Green, 35 P.3d 14, 19-20 (Alaska 2001).

      . Knutson v. Knutson, 973 P.2d 596, 599-600 (Alaska 1999).

      . - Flannery v. Flannery, 950 P.2d 126, 130 (Alaska 1997).

      . See Allen v. Allen, 645 P.2d 774, 776 n. 4 (Alaska 1982) (referring to AS 25.24.170's predecessor, - AS - 09.55.220). Alaska - Statute 25.24.170(a) states:
      Subject to AS 25.20.110, any time after judgment the court, upon the motion of either party, may set aside, alter, or modify so much of the judgment as may provide for alimony, for the appointment of trustees for the care and custody of the minor children or for their nurture and education, ... or for the maintenance of either party to the action.

      . Curley v. Curley, 588 P.2d 289, 291-92 (Alaska 1979).

      . See Hayes v. Hayes, 922 P.2d 896, 900-01 (Alaska 1996) (holding that superior court did not err in rejecting father's motion that mother repay money borrowed from children's PFDs in part because of court's explanation that mother paid more of child care costs due to father's underpayment of child support).

      . Nicholson v. Wolfe, 974 P.2d 417, 427 (Alaska 1999); Virgin v. Virgin, 990 P.2d 1040, 1043 (Alaska 1999).

      . Zimin v. Zimin, 837 P.2d 118, 124 (Alaska 1992) (quoting Tobeluk v. Lind, 589 P.2d 873, 878 (Alaska 1979)).


author: CARPENETTI, Justice.

text:
    Linda VUKMIR, Personal Representative of the Estate of Louis Vukmir, Appellant, v. Michael D. VUKMIR and Mary Lou Vukmir Epperson, Appellees.
    No. S-10594.
    Supreme Court of Alaska.
    Aug. 1, 2003.
    Robert C. Erwin and Roberta C. Erwin, Erwin & Erwin, Anchorage, for Appellant.
    Charles W. Coe, Law Office of Charles W. Coe, Anchorage, for Appellees.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETL Justices.
   OPINION

CARPENETTI, Justice.

I. INTRODUCTION

Linda Vukmir appeals the superior court's holding that she is responsible for the mortgage debt on her father's home, which she purchased by exercising an option bequeathed to her in her father's will. We affirm the superior court's assignment of the mortgage debt to Linda because we conclude that the language of the will clearly states that the heirs were not responsible for the debt in the event that Linda exercised her option.

II. FACTS AND PROCEEDINGS

A. Facts

Louis Vukmir died on August 22, 1998. His valid will, dated July 27, 1992, was admitted to probate on September 23, 1998. Pursuant to the will, the same court order named Linda E. Perkins (formerly Vukmir) as the estate's personal representative.

The will distributed Louis's property to his four children: Linda, George D. Vukmir, Michael D. Vukmir, and Mary Lou Vukmir Epperson. Paragraph five of the will provided that Louis's residual estate be divided with Linda receiving thirty-five percent, George and Michael each receiving twenty-five percent, and Mary Lou receiving fifteen percent. Paragraph four of the will, entitled "Specific Gifts," gave Linda an option to "purchase [Louis's] residence from [his] estate by paying the amount of $80,000.00 to [his] estate" within one year of Louis's death. The will further directed that this "amount" be divided among the heirs pursuant to the formula used to distribute the residual estate.

In November 1998 Linda negotiated the sale of the residence for $152,000, using an $80,000 advance from the buyer to purchase the residence from the estate. In exercising her option, Linda used the $80,000 payment to the estate to pay the outstanding mortgage debt of approximately $35,000 on the residence. She deposited the remaining $45,000 into the estate account for division among the testator's heirs.

B. Proceedings

Linda, acting as the estate's personal representative, filed a petition for final settlement and distribution on January 5, 2000. This petition sought approval of the proposed distribution of the testator's estate, including the above transactions concerning Linda's sale of the residence. Michael and Mary Lou objected to several portions of the proposed settlement and distribution, including the proposed treatment of Linda's sale of the testator's residence. Michael and Mary Lou claimed that the will provision constituted a specific devise to Linda, and that Linda therefore took the residence subject to the existing mortgage debt. Linda maintained that she was free to retain the entire $72,000 profit from her resale of the residence because the estate was liable for the mortgage debt.

This controversy was brought before Probate Master John E. Duggan for an eviden-tiary hearing on June 15, 2000. In its September 15, 2000 report, the probate court agreed with Michael and Mary Lou that the gift was a specific devise and applied AS 13.12.607 to hold that Linda did not have a right to exoneration of the mortgage debt by the estate.

Linda objected to Master Duggan's report, contending that he erred in characterizing the gift as a specific devise subject to nonex-oneration under AS 18.12.607. Superior Court Judge Stephanie E. Joannides agreed with Linda and remanded this issue back to the probate court for consideration of additional evidence as to the sale of the testator's residence.

The probate court filed a supplemental report on July 2, 2001 in which it reconsidered its earlier findings, concluding that the clear language of the will gave Linda an option to purchase the residence rather than a specific bequest. The probate court went on to find, based entirely on its interpretation of paragraphs four and five of the will, that the will provides that the full purchase price of $80,000 is a specific gift to be distributed among the heirs, The probate court found that Linda exercised her option to purchase the residence subject to the outstanding mortgage debt, and recommended that Linda be ordered to divide the full $80,000 purchase price among the heirs. Linda objected to the supplemental report, arguing that the clear language of the will and extrinsic evidence of mortgage debt at the time the will was made demanded that she not be held liable for the debt. On February 2, 2002 Superior Court Judge Morgan Christen adopted the July 2, 2001 supplemental report concerning the sale of the testator's residence. The superior court entered a final judgment consistent with this order, directing Linda to personally pay the mortgage debt on the home, on March 26, 2002. Linda appeals.

III. STANDARD OF REVIEW

Linda argues that we should review the superior court decision regarding her sale of the testator's residence de novo because the interpretation of a written document is a question of law. Michael and Mary Lou respond that the superior court made a factual finding regarding the testator's intent which should be reviewed under the clearly erroncous standard.

We held in Smith v. Estate of Peters that "[blecause the testator's intent is a question of fact, the trial court's decision to label a legacy as demonstrative or specific will not be set aside unless it is clearly erroneous." However, in Smith the superior court was required to consider extrinsic evidence. The rule in Smith does not govern a case in which the superior court determined the testator's intent solely through an examination of the will. Several states have held that in these cireumstances, that is, absent the need to consider extrinsic evidence, questions concerning the interpretation of a will are questions of law that are reviewed de novo. This comports with Alaska law generally concerning the interpretation of written documents: "[Qluestions of interpretation of the meaning of written documents are treated as questions of law for the court except where they are dependent for their resolution on conflicting extrinsic evidence." Accordingly, we apply the de novo standard of review here because the superior court relied exclusively on the language of the will in determining the testator's intent.

IV. DISCUSSION

The Will Requires that Linda Pay the Outstanding Mortgage Debt in Addition to the $80,000 Purchase Price.

Several courts have held that when a testator's or testatrix's intent is cléar from the language in a will, it is unnecessary for a court to examine extrinsic evidence to determine his or her intent. We agree with these courts that it is unnecessary to look beyond the words of a- will when those words clearly express the testator's or testatrix's intent. Therefore, if the language of paragraph four is clear, there is no need to examine, or remand to develop, extrinsic evidence.

This controversy over the interpretation of the testator's will centers on paragraph four of the will, which reads in relevant part:

I direct that my residence, 2615 Galewood Ave., Anchorage, Alaska be sold by my personal representative under whatever terms she thinks best; provided, however, that my daughter, LINDA VUKMIR may purchase my residence from my estate by paying the amount of $80,000.00 to my estate which amount shall be distributed among my heirs as set out in paragraph five. Should LINDA VUKMIR desire to purchase the residence, she shall make the payment set out above to my estate within one year of the time of my death otherwise, the property shall be sold with the proceeds distributed pursuant to paragraph five.

The superior court adopted the probate court's interpretation that this paragraph provided that "if Linda Perkins exercised her option to purchase the residence for $80,000.00 then the sum of $80,000.00, and not a lesser residual amount, was to be distributed to the heirs as a 'specific gift. " This holding classified the gift of the entire $80,000 from the exercise of the option as a specific bequest to the heirs to be divided in accordance with paragraph five of the will. Under this interpretation of the will Linda purchased Louis's residence subject to the outstanding mortgage debt.

Linda argues that the will bequeathed to her the option to purchase the residence by paying only $80,000 to the estate. She points to paragraph four, which states that "[Linda] may purchase my residence from my estate by paying the amount of $80,000.00 to my estate" and that "[sJhould [Linda] desire to purchase the residence, she shall make the payment set out above to my estate within one year of the time of my death." She contends that this language means that she could purchase the residence for a total price of $80,000 rather than the price of the $80,000 payment to the heirs plus the $35,802.91 needed to satisfy the outstanding mortgage debt.

Michael and Mary Lou respond that the will establishes the testator's intent to divide the entire $80,000 payment from Linda, rather than $80,000 minus the mortgage debt, between the heirs They argue that the superior court was correct in characterizing paragraph four of the will as a specific bequest of exactly $80,000 to the four heirs in the event that Linda exercised her option.

We agree with the superior court: The will is open to only one reasonable interpretation of the testator's intent. The will envisions two gifts: (1) a gift to Linda of an option to purchase the residence for $80,000 plus the outstanding mortgage debt and (2) a gift to all of the heirs to receive the full $80,000 payment split in accordance with the formula set forth in paragraph five of the will. Linda's argument that the will states that she is entitled to purchase the residence for only $80,000 appears reasonable only if the portions of the will she relies upon are read out of context. Linda misinterprets the testator's intent by focusing on the first half of the will's key sentence. The complete sentence states that "[Linda] may purchase my residence from my estate by paying the amount of $80,000.00 to my estate which amount shall be distributed among my heirs as set out in paragraph five." (Emphasis added.) When read in its entirety, this sentence states that the entire $80,000 payment should be divided between the heirs because it uses the phrase "which amount" to refer to the $80,000 payment. This sentence clearly conveys the testator's intent to provide the heirs with a specific bequest in the amount of exactly $80,000, not $80,000 minus the mortgage debt, in the event that Linda exercises her option to purchase the house. If Linda exercises her option but does not pay the mortgage debt, the heirs would not receive the entire $80,000 bequest envisioned by the testator.

This result is even clearer when the provision governing Linda's exercise of the option is read in conjunction with the provision governing the gift to the heirs in the event that Linda declined to exercise her option and the residence was sold to someone else. The will uses the phrase, "the property shall be sold with the proceeds distributed pursuant to paragraph five" to describe the gift to the heirs in the event that Linda declined to exercise her option. This phrase clearly reflects the testator's understanding that the mortgage debt would have to be satisfied out of the sale price, as it provides the heirs with "the proceeds" from the sale rather than a specific amount of money. This stands in stark contrast to the language used to de-seribe the gift to the heirs in the event that Linda exercised her option: a specific "amount," "$80,000," which shall be divided among the heirs. This evinces the testator's intent that the heirs receive the full, specified amount of $80,000, rather than the remainder of the purchase price minus the mortgage debt they would have received in the event that Linda declined to exercise her option. Because the language of the will clearly expresses the testator's intent to provide the heirs with the full $80,000 payment, Linda is responsible for paying the mortgage debt in addition to the $80,000 exercise price of her option.

v. CONCLUSION

We AFFIRM the superior court's holding that the testator's will demonstrates a clear intention to provide all of his heirs with a bequest of the full $80,000 exercise price of Linda's option to purchase his residence, rather than a bequest of the exercise price minus the outstanding mortgage debt on the residence. Linda is therefore responsible for the mortgage debt.

      . AS 13.12.607 states that "[al specific devise passes subject to any mortgage interest existing at the date of death, without right of exoneration, regardless of a general directive in the will to pay debts."

      . 741 P.2d 1172 (Alaska 1987).

      . Id. at 1174.

      . E.g., In re Estate of Bem, 247 Mich.App. 427, 637 N.W.2d 506, 509 (2001); In re Estate of Kuruzovich, 78 S.W.3d 226, 227 (Mo.App.2002); Summers v. Summers, 121 Ohio App.3d 263, 699 N.E.2d 958, 961 (1997).

      . Alaska Diversified Contractors, Inc. v. Lower Kuskokwim Sch. Dist., 778 P.2d 581, 584 (Alaska 1989).

      . - Wilkins v. Wilkins, 137 Idaho 315, 48 P.3d 644, 647-48 (2002); In re Estate of Bem, 637 N.W.2d at 509-10; Summers, 699 N.E.2d at 961; In re Jacobson's Estate, 460 Pa. 118, 331 A.2d 447, 449 (1975); In re Estate of Martin, 635 N.W.2d 473, 477 (S.D.2001).

      . She also argues that the testator's intent to limit her total cost to $80,000 can be deduced by reading the will in conjunction with established precedent that estate debts, such as the mortgage debt at issue in this case, should be satisfied out of the residual estate rather than transferred to an heir. Because we hold that the testator's intent is clearly expressed by the language of the will, there is no need to examine precedent governing the exoneration of an estate's debt in order to determine the testator's intent. - Similarly, we do not examine the arguments made by the parties suggesting that their interpretation of the will is supported by extrinsic evidence not considered by the probate and superior courts. There is no need to resort to an examination of extrinsic evidence of the testator's intent because the will clearly expresses his intent.

      . We reach this conclusion without giving any weight to Michael and Mary Lou's argument that Linda has breached her fiduciary duty to the other heirs by seeking to interpret the will in the manner most favorable to herself.