author: WINFREE, Justice. CARNEY, Justice, dissenting. CARNEY, Justice, dissenting.

text:
    Yvette M. WILKINS, Appellant, v. Paul D. WILKINS, Appellee.
    Supreme Court No. S-16618
    Supreme Court of Alaska.
    March 29, 2019
   WINFREE, Justice.

I. INTRODUCTION

A wife with serious medical conditions filed for divorce, but during trial the parties agreed to a legal separation to ensure the wife's continued access to her husband's employer-sponsored health insurance. The separation agreement's primary focus was delaying the divorce for 4 years, until the wife reached age 62 and became eligible for 36 months of post-divorce continuing health insurance coverage through the husband's employer-sponsored health insurance. The superior court divided the marital estate and ordered the husband to pay spousal support for 3 years and to pay for the wife's health insurance coverage after the expected later divorce. The wife appeals, arguing that the court erred by failing to value the husband's post-retirement medical benefits, declining to consider her agreement to legally separate as a factor in her favor when dividing the marital estate, wrongfully conflating spousal support with its property award, and unfairly allocating the overall property division. We reverse the court's ruling that it did not need to value the husband's retirement health benefits and remand for its valuation and a renewed equitable property distribution consistent with this opinion.

II. FACTS AND PROCEEDINGS

Yvette and Paul Wilkins married in 1980. Yvette's serious medical conditions leave her unable to work and require her to take expensive medications. She receives a disability annuity and has a federal thrift savings plan. Paul works for the State of Alaska; his employer-sponsored health insurance covers a significant portion of Yvette's medical expenses. Paul's other employment benefits include retirement healthcare, deferred compensation through the Public Employees' Retirement System (PERS), and a supplemental annuity (SBS). Paul also receives military retirement and Veteran's Affairs disability benefits.

Yvette filed for divorce in 2015; she later amended her complaint to convert the proceeding into a legal separation. Both Paul and Yvette believed that a legal separation postponing divorce for 7 years would allow Yvette, who was 58, to continue receiving health insurance through Paul's employer until becoming Medicare-eligible at 65. Paul, who was 57, opposed the proposed lengthy legal separation, and the divorce trial began.

At trial Yvette presented expert testimony regarding valuation of Paul's post-retirement health insurance benefits. Basing his valuation estimates on medical-costs trends discounted to present value, the expert provided a range of values corresponding to Paul's normal, probable, and expected retirement ages.

During trial the court observed that legally separating could delay divorce by only 4 years rather than 7 as the parties had assumed. Because Yvette was eligible for 36 months of post-divorce health insurance coverage under federal law, a separation need only remain in effect for the next 4 years until she turned 62. She then could obtain COBRA coverage until becoming eligible for Medicare at 65. Paul agreed to this shorter legal separation and to not file for divorce until Yvette turned 62. He also agreed to pay for Yvette's COBRA coverage.

The court later issued a "Decree of Legal Separation," directing that its property division order "constitutes a final division of the marital estate." In that property division order the court stated that Yvette's medical needs "make it nearly impossible simply to divide the marital estate (even unequally) and give the parties financial independence." The court identified its "primary and essential goal" as ensuring that "Yvette has adequate medical coverage" and stated that legal separation would provide the parties "equal health care coverage," which "eliminates the need to place an artificial value on the employer's contribution to Paul's healthcare coverage during his retirement."

The court awarded Yvette 50% of the marital share of Paul's military retirement benefits by qualified military retirement order, and, by qualified domestic relations orders, 55% of the marital share of his PERS and roughly 20% of the marital share of his SBS accounts. Yvette retained the marital home, as she had requested; she was required to refinance in her name and release Paul from the mortgage obligation. The court awarded Paul the remaining value of his military benefits, PERS, and SBS accounts. The court also distributed a variety of other assets and liabilities, including ordering Paul to pay the parties' remaining debts. Finally the court ordered Paul to pay spousal support for 36 months and to pay for Yvette's post-divorce COBRA coverage.

Yvette moved for reconsideration, arguing that the court erred by failing to value Paul's post-retirement health benefits and by placing greater weight on her insurance costs than on other factors. She also requested a more equitable property division. The court denied the motion. Yvette appeals.

III. DISCUSSION

There are three basic steps in equitably dividing marital assets: "(1) deciding what specific property is available for distribution, (2) finding the value of the property, and (3) dividing the property equitably." Yvette argues that the superior court erred by not valuing Paul's post-retirement health insurance benefits. She requests the court be directed to value them and consequently redistribute the marital estate. We agree and remand for the court to do so.

In Grove v. Grove we reversed the superior court's order requiring the husband to pay his wife's post-divorce health insurance premiums as an alternative to distributing the value of his post-retirement health benefits. We held that this alternative distribution "[did] not qualify as a valuation ... and [could] not substitute for an appropriate equitable distribution of the marital estate." Despite noting the difficulty in valuing post-retirement benefits, we nonetheless instructed the superior court on remand to rely on expert testimony and value the benefits consistent with Alaska law.

The superior court in this case, in exchange for "freeing Paul from the house obligation after a reasonable period," ordered Paul to pay spousal support and Yvette's COBRA costs. The court stated that this exchange "eliminates the need to place an artificial value on the employer's contribution to Paul's healthcare coverage during his retirement. That value simply cannot be captured or transferred to Yvette in any other meaningful way." But this "equalization payment" cannot qualify as a valuation. As we stated in Grove, absent findings about the value of marital property, we have "no 'means of evaluating whether an equitable distribution has been achieved'; not making such findings 'constitutes reversible error.' "

When in Hansen v. Hansen we first identified post-retirement health benefits as a potential marital asset subject to valuation and division, we stated, without any analysis or discussion, that when valuing this asset the superior court "should look" to the employer's premium subsidy rather than to "either the proceeds or the cost of procuring comparable insurance." We recently reiterated that Hansen is the controlling law on valuing post-retirement health benefits, stating that we had not been asked to overrule it. But we note two things: First, we have approved variations of the premium subsidy approach; and second, other courts have permitted valuation methods we summarily discounted without discussion in Hansen :

First, "a trial court might value health insurance benefits by considering the cost of obtaining comparable alternative benefits." Second, the court could "discount[ ] to present value all the premiums an employer had agreed to pay on behalf of a party" over the party's future life expectancy. Third, the trial court could "discount[ ] to present value the expected costs of the medical services a health insurance plan would cover" during the party's expected lifetime.[ ]

We now recognize that our one-size-fits-all premium subsidy approach to post-retirement health insurance benefits may not have been correct, and we leave it to the superior court in the first instance to exercise its gate-keeping function with respect to expert witness approaches to valuing these assets.

It was error not to value Paul's post-retirement health insurance benefits. We remand for the court to provide a value, and, because this value likely will affect the marital estate's overall value, the court may, in its discretion, need to reconsider its distribution of the marital estate. We therefore decline to address Yvette's arguments that the superior court: abused its discretion by emphasizing her medical needs over her purported consideration for agreeing to legally separate; improperly tied its spousal support and property division awards together; and made an overall manifestly unjust property award. These issues may be addressed on remand.

IV. CONCLUSION

We REVERSE the superior court's ruling that it did not need to value Paul's retirement health insurance benefits and REMAND for valuation and equitable division consistent with this opinion.

CARNEY, Justice, dissenting.

CARNEY, Justice, dissenting.

Because I find that unique facts - most significantly the parties' agreement to a legal separation in lieu of a divorce - distinguish this case from any other in which we have reviewed the financial impact of a marriage's end, I respectfully dissent from the court's decision to reverse and remand the superior court's treatment of medical benefits.

As the court acknowledges, the superior court adopted the parties' shared goal of ensuring that "Yvette has adequate medical coverage" for her serious medical needs. The superior court not only recognized that the impetus for the divorce trial itself was the parties' disagreement over how to best achieve that goal, it offered its own alternative, which the parties accepted when they agreed to a four-year legal separation instead of a decree of divorce.

The mechanism by which this legal separation would accomplish the goal of providing Yvette with adequate medical coverage is detailed in the court's Order. Paul specifically agreed to the period of separation so that Yvette could continue to be covered under his health insurance until she turned 62. He also agreed that for three years, until she turned 65 and thereby became eligible for Medicare and no longer required coverage under his insurance, he would continue paying for her to have COBRA coverage.

The parties' separation agreement thus specifically required their ongoing "financial entanglement" until Yvette turned 65. This specific agreement renders their agreement unlike the arrangement we disapproved in Grove v. Grove . In that case we agreed with the husband, who objected that he should not be required to remain financially entangled with his former wife.

Based upon the unique nature and the limited duration of the specific agreement that the parties reached to achieve the shared goal of maintaining adequate medical insurance for Yvette's significant health needs, I would affirm the superior court's order implementing their agreement.

      A court may grant legal separation upon finding that the parties are incompatible and that preserving the marriage protects significant legal, financial, social, or religious interests. AS 25.24.410.

      See Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), 29 U.S.C. §§ 1161 -1169 (2012).

      Beals v. Beals , 303 P.3d 453, 458 (Alaska 2013).

      See Hansen v. Hansen , 119 P.3d 1005, 1015 (Alaska 2005) (holding that health insurance benefits earned during marriage are marital assets).

      See Grove v. Grove , 400 P.3d 109, 112 (Alaska 2017) ("A court's decision whether to value personal property ... is a legal question that we review de novo." (citing Mellard v. Mellard , 168 P.3d 483, 486 (Alaska 2007) )).

      Id. at 116.

      Id. at 114.

      Id. at 115.

      See id. at 114.

      Id . (quoting Cox v. Cox , 882 P.2d 909, 918 (Alaska 1994) ).

      119 P.3d 1005, 1016 (Alaska 2005) (citing Brett R. Turner, Equitable Distribution of Property § 6.26 (2d ed. Supp. 2004)).

      Grove , 400 P.3d at 114. See also Gordon v. Gordon , 425 P.3d 142, 148 (Alaska 2018) (citing Hansen for the proposition that courts should value retirement medical benefits based on employer-provided premiums); Ethelbah v. Walker , 225 P.3d 1082, 1089 (Alaska 2009) (noting that Hansen requires courts to value retirement health insurance benefits based on employer premium subsidies).

      See Engstrom v. Engstrom , 350 P.3d 766, 771-72 (Alaska 2015) (using an "individual rate," which is "the amount the employee would pay if she were required to pay her own premiums to insure only herself"); Ethelbah , 225 P.3d at 1090 (calculating values using individual, rather than composite, rate).

      2 Brett R. Turner, Equitable Distribution of Property § 6.90 (3d ed. 2017) (quoting Bingley v. Bingley , 935 N.E.2d 152, 157-58 (Ind. 2010) ); see also Paul v. Paul , 648 So.2d 1211, 1213 (Fla. Dist. App. 1995) (remanding for benefits' valuation using cost of comparable policy if husband had procured it for himself on private insurance market).

      Opinion at 196.

      Opinion at 195-96.

      400 P.3d 109 (Alaska 2017).

      Id. at 115.


source: Caselaw Access Project

author: BOLGER, Justice. CARNEY, Justice, dissenting. CARNEY, Justice, dissenting.

license: Public Domain

text:
    REGINA C., n/k/a Regina S., Appellant, v. MICHAEL C., Appellee.
    Supreme Court No. S-16421
    Supreme Court of Alaska.
    April 5, 2019
   BOLGER, Justice.

I. INTRODUCTION

A mother and father divorced, and the superior court awarded "sole legal and primary physical custody of the children" to the mother. The court did so with "reluctance," finding that the mother had "engaged in ... egregious parental alienation," but also finding that the children had become "adjusted ... to life" in the mother's care. The court awarded substantial periods of visitation to the father. It explained that if the mother interfered with visitation, it "w[ould] likely change its custody determination to award ... custody" to the father. Visitation subsequently failed to occur, and the court ordered the mother to show cause. Following a hearing, the court held the mother in contempt and modified the custody decree to give custody to the father.

The mother appeals the modification of custody. She claims she had inadequate notice that custody would be determined at the show-cause hearing and contends that the superior court should have continued the hearing when her counsel withdrew several days earlier. She also claims the court's modification of custody was based on the court's mistaken conclusion that she committed custodial interference, a crime of domestic violence. We conclude that the mother had adequate notice of the hearing and that the trial court did not err when it found that her conduct constituted custodial interference. Accordingly we affirm the superior court's judgment.

II. FACTS AND PROCEEDINGS

A. Background

Regina S. and Michael C. married in 2000, and have two children, both boys, from the marriage. Regina filed for divorce in late 2014. Regina alleged, and the superior court found, that Michael had engaged in domestic violence against her. The court thus awarded temporary physical and legal custody of the children to Regina pending a divorce trial and permanent custody award. The court restricted Michael to supervised visitation. Michael never actually had any supervised visits with the children, however, because in May 2015 - when the visits were to begin - Regina left Alaska and took the boys with her.

B. The Custody Investigation

The superior court appointed a custody investigator to make recommendations concerning a permanent award of custody. The investigator prepared a report and later testified at trial.

Based on interviews with the parties and the children, psychological evaluations of both parties, references from individuals who were familiar with the family, and the parties' family histories, the custody investigator concluded that both parties had "a diminished ability to parent." The investigator believed the children had already been "psychologically scarred" and that the parties' continuing "actions ... [were] likely to cause lifelong emotional damage to" them.

In particular the investigator found that Regina had taken "steps" - such as removing the two boys from the state - that "ensure[d]" that contact between the children and Michael "would be very difficult." As a result, the children had not been in contact with Michael for over 17 months, and neither child wanted any contact with him. The investigator believed that Regina had "facilitate[d] the boys' change in attitude about their father," and she characterized this case as involving "severe parental alienation."

Finding the case to be "very complex[,] ... with no easy answers," the custody investigator recommended - "[w]ith great difficulty" - that Regina "continue to have custody of" the children. The investigator ruled out a shared custody arrangement because "[t]he parents [were] unable to communicate and [were] unlikely to be able to do so in the near future." And because the boys were attending school in Arizona, where Regina was living, the investigator thought it better for them to remain with Regina. The investigator further indicated that this option was preferable because transferring custody of the boys from Regina to Michael would cause them further trauma.

The investigator believed it was important for the children's development that they reestablish a relationship with their father. She recommended that Michael "have visitation during the summers and alternate holidays." She further stated that "if there are not monumental efforts to facilitate contact between the boys and their father, [she] would likely recommend a change of custody." The investigator said any such change of custody should "be done before the start of the school year[ ]... to avoid further disruption in the [children's] education."

C. The Custody Award

The superior court decreed the parties divorced in March 2016, and it issued a final custody award in June 2016 following trial. In reaching its custody determination the court considered the testimony of the parties and other witnesses, the recommendations of the custody investigator, and psychological evaluations of the parties.

The court addressed each of the statutory factors concerning the best interests of the children in a written order. The court explicitly "discount[ed]" one of the best-interests factors - "the child[ren]'s preference" - because the court found that the boys' preference that they not have contact with their father was the "result of ... [Regina's] parental alienation." Indeed, the court stated Regina had "engaged in the most egregious parental alienation that the ... court ha[d] ever seen." The court agreed with the custody investigator "that contact between [Michael] and the children is ... important to the children's development."

The court adopted the custody investigator's recommendation and "reluctan[tly]" awarded Regina "sole legal and primary physical custody of the children." The court gave Michael substantial periods of visitation, including the children's summer vacations. The court explained that "[t]here [were] limits to the ... custody award":

If Regina fails to cooperate with [Michael] to ensure that the children have court-ordered visitation ..., the court will likely change its custody determination to award sole legal and primary physical custody of the children to [Michael]. Such a change under those circumstances would be consistent with the custody investigator's recommendation to the court.

D. The Order To Show Cause

The superior court ordered the first period of visitation to begin on July 6, 2016. Regina was required to put the children on a flight so that they could travel from her home to Michael's home in Alaska to spend one month with Michael. She did not do so.

Michael subsequently moved "for an order that Regina ... appear ... and show cause as to why she should not be held in contempt of court for failing to have [the parties'] children in Alaska for visitation." Michael pointed out that "[t]he court stated that it would entertain a change of custody if Regina ... did not make visitation between the boys and [Michael] happen." Regina filed a response in which she claimed that she had "act[ed] in good faith to try to make th[e] travel happen" but that the boys had refused to cooperate. She accused Michael of "leverag[ing] [an] impossible situation into an effort to reverse custody."

On July 19 the court issued an order for Regina to "show cause" at an August 1 hearing "why [she] should not be held in contempt of court for willfully violating the [custody] order." The show-cause order further stated that Regina "should be prepared to advise the court why it should not change custody of the minor children" to Michael.

E. The Withdrawal Of Regina's Counsel

Regina's counsel moved to withdraw before the August 1 show-cause hearing. On July 28 Superior Court Judge William F. Morse, who was not the judge assigned to the divorce and custody case, presided over a hearing on the withdrawal motion. At the hearing, Regina asserted that she did not want her attorney to withdraw but "underst[ood]" that he needed to do so. Judge Morse asked Regina whether she would be attending the show-cause hearing "on [her] own." Regina responded, "I suppose, if I can't get an extension of time." Judge Morse said it was "not really [his] call" whether to continue the show-cause hearing, but he permitted Regina's counsel to withdraw.

F. The Show-Cause Hearing And Custody Modification

The show-cause hearing was held as planned on August 1. At the beginning of the hearing, the superior court remarked - without comment or opposition by Regina - that Regina was "now representing herself." The court explained that the hearing's purpose was to decide whether Regina should be held in contempt and "whether [the court] should order what some experts call a parentectomy, that is, a permanent transfer of custody."

Regina testified first. She asserted that she had done "everything [she] possibly could" to get the boys to board the flight to Alaska, including contacting the police, but that they had been unwilling to do so. She further testified that she had tried to get her children to speak to Michael on the phone but that they had "absolutely refuse[d]." Regina claimed the children were "reasonabl[y]" afraid of their father and had witnessed "[d]omestic abuse their entire lives."

The custody investigator and Michael also testified. The investigator recommended, based on various factors that she explained to the court, that there be "a change of custody" and "that the children have intensive counseling." Michael expressed his concern that if the court allowed Regina to retain custody, she would be unlikely to cooperate with visitation and "[they'll] be right back in court wherever it is [they] are."

After the parties presented evidence and arguments, the superior court found that "there [was] no legitimate explanation for why the visitation didn't occur" and that Regina's testimony about the children witnessing extensive domestic violence was "fantasy." The court held Regina in contempt.

The court also found that Regina had committed the crime of first-degree custodial interference: she had intentionally "h[eld] the children for a protracted period of time" out of the state, and Michael "was the legal custodian" under the June 2016 custody award. The court moreover reasoned that Regina committed two crimes - since there were two children - and that she thus had a history of perpetrating domestic violence. Thus the court considered its "hands ... tied" by the domestic violence presumption and concluded that it had "to take custody away from her immediately." The court also found that Regina posed a "danger of mental harm to the children" and reaffirmed its earlier best-interests analysis.

The court "order[ed] an immediate transfer of custody so that [Michael] [would] have sole legal custody ... and primary physical custody and" Regina would have "supervised visitation." The court stated that it was "essentially following [the custody investigator's] recommendations."

Regina moved for reconsideration and to stay the order, but the court denied the motions. She now appeals.

III. DISCUSSION

A. Regina Received Adequate Notice That Custody Would Be Addressed At The Show-Cause Hearing, And Her Right To Due Process Was Not Violated.

Regina claims that "the superior court erred ... in considering a change in custody" at the show-cause hearing "upon only ten [days'] notice with no prior motion to modify custody having been filed." "Procedural due process under the Alaska Constitution requires notice and opportunity for hearing appropriate to the nature of the case." The "adequacy of the notice and hearing afforded a litigant" is a question of constitutional law "to which we apply our independent judgment."

We conclude that under the circumstances Regina had timely and adequate notice that the superior court would consider modifying the custody award at the August 1 show-cause hearing. Most significantly, the July 19 order to show cause stated that Regina "should be prepared to advise the court why it should not change custody of the minor children" to Michael. The order thus provided express notice 13 days before the show-cause hearing that permanent custody would be addressed at the hearing.

Even before July 19, Regina should have been aware - and the record reflects she was in fact aware - that the court would reevaluate custody as a result of the children's failure to visit their father. The court stated in its June 2016 custody order that it "w[ould] likely change its custody determination" if Regina failed to comply with the order's visitation terms, and Michael raised the possibility of custody modification in his motion for an order to show cause. Regina acknowledged in her response to Michael's show-cause motion that Michael was attempting to "reverse custody."

Regina therefore had a sufficient amount of time to prepare - at least 13 days - and could not reasonably have been surprised by the court's decision to address custody at the show-cause hearing. The period of notice was particularly appropriate in light of the custody investigator's recommendation that the court resolve the custody issue in an expedited manner - before the start of the school year in August - so that the children's education would not be disrupted.

In arguing that her right to due process was violated, Regina relies on VinZant v. Elam and Lashbrook v. Lashbrook . In VinZant the superior court modified the parents' permanent custody arrangement following a show-cause hearing, and in Lashbrook the superior court issued a permanent custody award following a hearing on a petition for a domestic violence protective order. In each case we reversed, concluding that the superior court had not given the parents notice that permanent custody was in issue and had failed to make findings on whether a modification of custody was in the children's best interests.

These cases are not helpful to Regina. Unlike the parents in VinZant and Lashbrook , Regina received a show-cause order that explicitly indicated custody would be addressed at the hearing. And unlike in VinZant and Lashbrook , the superior court in this case addressed the best-interests factors by reaffirming the findings that it had made a little over a month earlier in the June 2016 custody award.

Regina further argues that the present case is like Cushing v. Painter . In that case we reversed a permanent custody award where the superior court had given the parents only five days' notice and had informed them only that "interim" custody was in issue. The present case is distinguishable because Regina had at least 13 days' notice - not 5 - of the hearing. And Regina, unlike the parents in Cushing , could not have reasonably been under the impression that only temporary custody would be addressed at the hearing. She should have known from the conditional nature of the June 2016 custody award and from the language in the show-cause order that permanent custody was in issue.

Regina claims she was "forced to proceed without an [a]ttorney" at the show-cause hearing due to her attorney's last-minute withdrawal, and she asserts that the lack of counsel "compounded" the supposed deficiencies with the notice. But Regina never made a showing to the superior court that she lacked time or resources to retain replacement counsel. Indeed, although her attorney withdrew mere days before the show-cause hearing, Regina received notice of the need to seek out replacement counsel several weeks earlier when her attorney filed his motion to withdraw. And Regina is an educated professional (a medical doctor) who had the assistance of her attorney in preparing a written response to the motion to show cause. Even if she was "forced" to proceed self-represented at the hearing, her right to due process was not violated.

We finally point out that a "party raising a due process objection must show that [she] has suffered actual prejudice." Regina has not made such a showing. She vaguely asserts that the supposedly short notice and her lack of counsel rendered her unable to present "additional information regarding [Michael's] behavior following the original custody trial." But Regina had an opportunity to testify about Michael and cross-examine him at the show-cause hearing. And as Michael points out, "[i]t is an undisputed fact that [Michael] had no contact ... with the children or [Regina] after the custody trial."

Regina also asserts she was unable "to present witnesses from Arizona where [they] had been ... doing well." But within ten days of the modification of custody, Regina obtained statements from several witnesses, which she provided with her motions for reconsideration and for a stay. There is no basis in the record to conclude that Regina could not have had these witnesses testify telephonically at the show-cause hearing.

Regina therefore has not established a due process violation or prejudice.

B. The Superior Court Was Not Required To Continue The Show-Cause Hearing.

Regina claims that the superior court should have continued the show-cause hearing following the withdrawal of her attorney. We review denial of a continuance for abuse of discretion. Failure to grant a continuance "is an abuse of discretion 'when a party [is] deprived of a substantial right or seriously prejudiced.' " We discern no abuse of discretion on this record.

At the hearing concerning her attorney's motion to withdraw, Regina told Judge Morse, the judge handling the attorney withdrawal motion, that she "suppose[d]" she would be attending the show-cause hearing on her own if she could not "get an extension of time." This arguably constituted an implicit motion for a continuance.

Since Judge Morse was presiding at this withdrawal hearing, he stated that it was "not really [his] call" whether to continue the show-cause hearing. Thus the court effectively reserved ruling on Regina's implicit motion. It was therefore incumbent on Regina to renew her motion before the judge assigned to the case.

Regina never did so. She did not file a written motion following the withdrawal hearing. And when she appeared at the show-cause hearing she did not orally request a continuance. In fact she did not respond at all when the court remarked that she was "now representing herself." Because Regina did not renew her earlier implicit motion, it does not appear that the judge assigned to the divorce and custody case - the judge who presided over the show-cause hearing - was aware of the motion or of any need to rule on it. And the court was not required to raise the matter of a continuance sua sponte.

C. Regina Committed Custodial Interference.

Regina claims the superior court erred in concluding she committed the crime of custodial interference. The superior court found that she had committed the crime of custodial interference in the first degree. A person who is a "relative" of a child commits custodial interference in the second degree if, "knowing that [she] has no legal right to do so, [she] takes, entices, or keeps th[e] child ... from a lawful custodian with intent to hold the child ... for a protracted period." The relative is guilty of custodial interference in the first degree if she commits the second degree offense and in addition "causes the child ... to be removed from [Alaska]; or kept outside [Alaska]." Regina alleges that the superior court erred when finding two elements of this crime satisfied, arguing that Michael cannot qualify as a lawful custodian and she did not have the required intent.

1. The superior court correctly determined that Michael was a lawful custodian of the children.

Regina argues that, as a matter of law, she could not have committed this offense because under the superior court's permanent custody award she - not Michael - was the "lawful custodian." We disagree.

"We review statutory interpretations de novo." "We interpret statutes according to reason, practicality, and common sense, taking into account the plain meaning and purpose of the law as well as the intent of the drafters." Our analysis begins with the text of the statute. Alaska Statute 11.41.370(1) defines "lawful custodian" to mean "a parent, guardian, or other person responsible by authority of law for the care, custody, or control of another."

Michael qualifies as a lawful custodian because the superior court made him responsible for the care, custody, and control of the children during the summer. The superior court awarded Michael unsupervised visitation rights with the children from July 6, 2016 through August 6, 2016. During this time the court expected Michael to enroll the children in reunification therapy sessions, and Michael was responsible for the counselor's fees. Additionally the court authorized Michael to travel out-of-state with the children during this and future summer visitations. Considered together, Michael was made responsible by authority of law for the care, custody, and control of the children, thereby making him a lawful custodian for purposes of AS 11.41.370(1).

The dissent opines that the crime of custodial interference does not apply when a parent has only visitation rights. This evaluation is partly based on the existence of a separate offense of failure to permit visitation with a minor under AS 11.51.125. But the elements of these two crimes differ greatly. Only a custodian may commit failure to permit visitation, unlike custodial interference, which may be committed by anyone. And failure to permit visitation requires violation of a custody order - unlike custodial interference, which one parent may commit against the other even when there is no custody order. More importantly, to commit custodial interference a person must take, keep, or entice the child from a lawful custodian with the intent to hold the child for a protracted period with no legal right to do so . Failure to permit visitation has no similar intent element or duration element.

If Regina had kept the children from Michael intending to hold them only for a short period of time, then Regina might have committed only failure to permit visitation but not custodial interference. However, the superior court found that Regina kept the children from Michael, intending to hold them for a protracted period when she had no legal right to do so. Under these circumstances, the superior court could reasonably conclude that Regina committed custodial interference.

2. The superior court did not clearly err when it found that Regina intentionally kept the children for a protracted period.

To commit the crime of custodial interference, a person must not only take, entice, or keep a child from a lawful custodian but also "know [ ] that [he or she] has no legal right to do so" and "inten [d ] to hold the child ... for a protracted period." Regina claims that "based on the evidence presented, it was not shown [that she] intended to hold the children out of state." Instead she argues that she "did everything she could do to get the then 14 and 15 year old boys to board the plane." The superior court did not clearly err in discounting this evidence.

"A factual finding is clearly erroneous if 'a review of the entire record leaves us with a definite and firm conviction that the trial court has made a mistake.' " "The trial court's factual findings enjoy particular deference when they are based 'primarily on oral testimony, because the trial court, not this court, judges the credibility of witnesses and weighs conflicting evidence.' "

The superior court made no such mistake here. The court expressly found Regina not credible and that Regina's supposed efforts to put her children on a plane to Alaska were all for show:

She got to the airport, made sure the police knew where she was at and all of that, but really didn't do the things that were necessary to get the children on the plane, or encourage them to really get on the plane, or perhaps explain to them what the consequences would be if they do not get on the plane.

The superior court had previously found that "Regina ha[d] brainwashed the children into believing that Michael is a monster." The court implicitly relied on this earlier finding in concluding that Regina was lying about being unable to convince the children to board the airplane: "I understand [Regina] has lots of explanations, teenage boys, who she says she can't control, I think she can control them, I think she has been controlling them." Reviewing the record as a whole, we find that the court did not clearly err when it found that Regina intentionally kept the children with her during the summer.

IV. CONCLUSION

For the foregoing reasons we AFFIRM the court's decision to award primary physical custody and sole legal custody to Michael.

CARNEY, Justice, dissenting.

CARNEY, Justice, dissenting.

I agree that Regina received adequate notice that custody would be addressed at the show cause hearing, that the superior court was not required to continue that hearing, and that the superior court appropriately changed custody of the children from Regina to Michael. But because I believe that as a matter of law she could not have committed custodial interference, I respectfully dissent.

In its June 2016 order the superior court awarded "sole legal custody" and "primary physical custody" of the children to Regina and "visitation" to Michael. As this court notes, the superior court made its award with great reluctance, and it warned Regina that "[i]f [she] fail[ed] to cooperate ... to ensure that the children have ... visitation ... [it would] likely change its custody determination to award sole legal and primary physical custody ... to [Michael]."

In their litigation regarding Regina's failure to honor the requirement for visitation with Michael, both parents and the superior court consistently and clearly differentiated between Regina's custody of the children and Michael's visitation. Michael asked the court to hold Regina in contempt for failing to return the children to Alaska for visitation and reminded the court that it had "stated it would entertain a change of custody" to him if Regina failed to make the visitation happen. In response Regina accused Michael of trying to make the court reverse its award of custody to her. In its order scheduling a hearing on Michael's motion to show cause, the court warned Regina to be prepared to explain why the court "should not change custody of the minor children" from her to Michael.

Alaska's custodial interference statute states that a "relative" of a child commits the crime of custodial interference if, "knowing that [she] has no legal right to do so, [she] takes, entices, or keeps th[e] child ... from a lawful custodian with intent to hold the child ... for a protracted period." The record is clear that Regina knew that the children were supposed to be in Alaska for the court-ordered visitation with Michael. It is also clear that she intended to, and did, keep the children for a protracted period in Arizona. And further that she did not have a legal right to do so under the court's custody order. But, as she argues, she was the children's "lawful custodian." As a result she could not have committed custodial interference.

In deciding that "Michael was a lawful custodian of the children" and affirming the superior court on that basis, this court ignores the difference between the custody awarded to Regina and the visitation awarded to Michael. It also disregards the law. Alaska Statute 11.51.125 establishes the offense of failure to permit visitation with a minor. Its terms describe Regina's actions: A custodian commits this offense "if the custodian intentionally, and without just excuse, fails to permit visitation with a child ... in the custodian's custody [as required by] a court order that is specific as to when the custodian must permit another to have visitation with that child."

The court emphasizes differences between the two statutes' mens rea and durational requirements. While those differences may suggest that someone other than a custodian, or any person when no custody order exists, could deprive another of visitation and not be charged with failure to permit visitation, those situations are not present here. Regina was the custodian and she did violate the custody order and fail to permit Michael's court-ordered visitation with the children.

The court seems to assume that there is some undefined amount of time that transforms "visitation" into "custody." The custody statute distinguishes between an award of shared custody to both parents and an award of custody to one parent while providing only visitation to the other "if that is in the best interests of the child." Yet the court considers Michael's visitation "during the summer" sufficiently long to qualify as custody. Based upon the visitation's length, it holds that although she might have been guilty of failure to permit visitation if she had intended to keep the children only for a short period, once the period became "protracted" Regina committed custodial interference. In elevating Regina's conduct to custodial interference based on the length of time involved, the court appears to dismiss section (b) of the visitation offense, which provides that a "custodian may not be charged ... with more than one offense in respect to what is ... a single continuous period of visitation."

The court justifies its transformation of one offense into another by turning to a statute that defines "lawful custodian" as anyone with legal authority for "the care, custody, or control of another" and then concluding that unsupervised visitation "during the summer" includes enough "care, custody, and control" to change court-ordered visitation into court-created custody. This conclusion not only contradicts the legislature's separation of the two concepts and establishment of separate punishments, it also dismisses our only previous discussion of a similar situation. In Graham R. v. Jane S. we disapproved of the superior court's finding that Graham had committed custodial interference by keeping the child in another state for months in violation of a court order providing Jane with regular visitation. We stated:

The ... custody order granted sole legal custody and primary physical custody to Graham. Jane was not the custodial parent (although she had visitation rights), and the "custodial interference" statute, by its terms, does not apply.[ ]

In that case we went on to affirm the court on a different basis - that the interference with visitation constituted a substantial change in circumstances that justified modifying custody. The superior court's change of custody to Michael here is similarly justified. But the superior court's reliance upon its mistaken belief that Regina had committed custodial interference was not harmless.

Building upon its erroneous interpretation of the custodial interference statutes, the superior court concluded that Regina had a history of perpetrating domestic violence. As a result, the court limited Regina to supervised visitation with the children, and it required her to "attend a 36-week domestic violence intervention program." I would therefore reverse the superior court's findings that Regina had committed custodial interference, that she had done so twice, and that the statutory presumption against unsupervised visitation applied to her; I would remand the matter to the superior court to reconsider these, and any other rulings, that may have stemmed from its custodial interference determination.

      AS 11.41.320 -.330, 18.66.990(3)(A).

      We use initials in lieu of the parties' last names to protect the family's privacy.

      The investigator submitted her report in early May 2016, and the court later issued its custody award on June 30, 2016. The school year would begin in August.

      See AS 25.24.150(c).

      AS 25.24.150(c)(3).

      Counsel filed the motion on July 8.

      AS 11.41.330(a)(1) ("A person commits the crime of custodial interference in the second degree if ... being a relative of a child ... and knowing that the person has no legal right to do so, the person takes, entices, or keeps that child ... from a lawful custodian with intent to hold the child ... for a protracted period."); AS 11.41.320(a) ("A person commits the crime of custodial interference in the first degree if the person violates AS 11.41.330(a)(1) and causes the child ... to be ... removed from the state[ ] or ... kept outside the state.").

      AS 25.24.150(h) ("A parent has a history of perpetrating domestic violence ... if the court finds that ... the parent has engaged in more than one incident of domestic violence."). Per AS 18.66.990(3)(A), "domestic violence" includes "a crime against the person under AS 11.41" that is an "attempt to commit ... by a household member against another household member."

      AS 25.24.150(g) ("There is a rebuttable presumption that a parent who has a history of perpetrating domestic violence against the other parent, a child, or a domestic living partner may not be awarded sole legal custody, sole physical custody, joint legal custody, or joint physical custody of a child.").

      Debra P. v. Laurence S. , 309 P.3d 1258, 1261 (Alaska 2013) (quoting Lashbrook v. Lashbrook , 957 P.2d 326, 328 (Alaska 1998) ).

      Id. at 1260 (quoting Lashbrook , 957 P.2d at 328 ).

      See Dennis O. v. Stephanie O. , 393 P.3d 401, 411 (Alaska 2017) (citing In re K.L.J. , 813 P.2d 276, 279 (Alaska 1991) ) (indicating that governmental interest in protecting children can be taken into account in assessing what process a parent is due).

      977 P.2d 84 (Alaska 1999).

      957 P.2d at 326.

      VinZant , 977 P.2d at 85 ; Lashbrook , 957 P.2d at 327-28.

      VinZant , 977 P.2d at 86-87 ; Lashbrook , 957 P.2d at 329-30.

      Though the court reaffirmed its previous best-interests findings, it also noted that Regina's failure to facilitate visitation was a new development weighing in favor of custody modification. Regina points out that to modify custody, the superior court must also find that there has been a "substantial change in circumstances." Bagby v. Bagby , 250 P.3d 1127, 1129 (Alaska 2011) (citing AS 25.20.110(a) ). Although the superior court did not use those words, it found that Regina intentionally and completely deprived Michael of contact with his children in violation of the custody award, behavior which constituted a substantial change in circumstances as a matter of law. See Graham R. v. Jane S. , 334 P.3d 688, 694-95 (Alaska 2014). We discuss this in more detail below in Part III.D.

      666 P.2d 1044 (Alaska 1983).

      Id. at 1046.

      Regina does not argue that the superior court abused its discretion in allowing her counsel to withdraw. See Willoya v. State, Dep't of Corr. , 53 P.3d 1115, 1119 (Alaska 2002). She insinuates that the court did something improper, claiming that the court permitted counsel to withdraw "following an in-chambers consultation ... which excluded" her. But the record reflects that Regina was present during this discussion, and Regina has not requested that we review the sealed part of the record documenting the discussion. See Raris v. Greek Corner , 911 P.2d 510, 511 n.5 (Alaska 1996) (indicating that a party waives an argument if she fails to cite facts or otherwise support the argument).

      See Dennis O. v. Stephanie O. , 393 P.3d 401, 409 (Alaska 2017) ("[S]elf-represented ... parents facing opposing parents represented by private counsel are not, as a class, deprived of due process rights solely because they do not have counsel."). We point out that Regina has not contested the contempt ruling. See Bustamante v. Alaska Workers' Comp. Bd. , 59 P.3d 270, 274 (Alaska 2002) (noting the right to counsel in a contempt proceeding).

      Moody v. Royal Wolf Lodge , 339 P.3d 636, 643 (Alaska 2014).

      Clementine F. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. , 375 P.3d 39, 43 (Alaska 2016).

      Shooshanian v. Dire , 237 P.3d 618, 623 (Alaska 2010) (quoting Siggelkow v. Siggelkow , 643 P.2d 985, 986-87 (Alaska 1982) ).

      See Sengupta v. Univ. of Alaska , 139 P.3d 572, 581 (Alaska 2006) (referring to "our lenient approach" in construing motions by self-represented litigants). We note that Regina was technically not self-represented at that time but was in fact represented by counsel.

      See id. ("[T]o preserve a claim based on a superior court's failure to rule on a motion, a party must make every effort to request and obtain a ruling before proceeding to trial." (quoting Taylor v. Johnston , 985 P.2d 460, 467 (Alaska 1999) )).

      Regina also did not file a written motion for continuance before the withdrawal hearing, even though she was represented by counsel at that time.

      For the reasons set forth above, Regina has also failed to demonstrate that she was prejudiced by the failure to continue the show-cause hearing.

      AS 11.41.330(a)(1).

      AS 11.41.320(a).

      Michael W. v. Brown , 433 P.3d 1105, 1109 (Alaska 2018) (citing Jude M. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. , 394 P.3d 543, 550 (Alaska 2017) ).

      Id . (quoting Marathon Oil Co. v. State, Dep't of Nat. Res. , 254 P.3d 1078, 1082 (Alaska 2011) ).

      See City of Valdez v. State , 372 P.3d 240, 249 (Alaska 2016).

      Regina argues that our discussion of custodial interference in Graham R. v. Jane S. should control this case because we noted a distinction between parents with custodial rights and visitation rights when interpreting "lawful custodian." 334 P.3d 688, 694 (Alaska 2014). In that case a father with custodial rights held a child out of state, preventing the mother from exercising her weekend visitation rights. Id . at 694. We reviewed the superior court's finding that this was a change in circumstances justifying a modification of custody. Id . at 694-95. We held that the father's substantial interference with the mother's visitation rights constituted a substantial change in circumstances justifying the modification, but declined to base our holding on AS 11.41.330(a). Id . Because our brief discussion of AS 11.41.330(a) was not necessary to the holding in the case, we consider it dicta. See Scheele v. City of Anchorage , 385 P.2d 582, 583 (Alaska 1963) ("We look upon what we said in [a previous] case ... as obiter dictum, since it was not necessary to the decision in that case."), superseded by statute on other grounds , AS 09.65.070.

      Alaska Statute 11.51.125(a) provides:
      A custodian commits the offense of failure to permit visitation with a minor if the custodian intentionally, and without just excuse, fails to permit visitation with a child under 18 years of age in the custodian's custody in substantial conformance with a court order that is specific as to when the custodian must permit another to have visitation with that child.

      See AS 11.41.330(a).

      See Vachon v. Pugliese , 931 P.2d 371,377 (Alaska 1996) ; Strother v. State , 891 P.2d 214, 223-24 (Alaska App. 1995).

      AS 11.41.330 (emphases added).

      Faulkner v. Goldfuss , 46 P.3d 993, 996 (Alaska 2002) (quoting Evans v. Evans , 869 P.2d 478, 479 (Alaska 1994) ).

      Limeres v. Limeres , 320 P.3d 291, 296 (Alaska 2014) (quoting Sheffield v. Sheffield , 265 P.3d 332, 335 (Alaska 2011) ).

      AS 11.41.330(a)(1). Removing the child from the state or keeping the child outside the state elevates the offense to first-degree custodial interference, a felony. AS 11.41.320(a)(1). The superior court specifically found that Regina committed the felony because she kept the children outside Alaska.

      Opinion at 15.

      AS 11.51.125(a).

      Opinion at 16-17.

      AS 25.20.060(a), (c).

      Opinion at 16.

      AS 11.41.330(a)(1).

      AS 11.51.125(b).

      Given that both the statute relating to interference with custody and the statute addressing failure to permit visitation were drafted in 1978 and that courts' approaches to child custody considerations in Alaska and throughout the United States have changed in the intervening decades, it may well be appropriate for the legislature to revisit the statutes and the concepts underlying them. But until such time as they are amended, these laws continue to distinguish clearly between "custody" and "visitation."

      Failure to permit visitation is a violation; custodial interference in this case is a felony. See AS 11.41.320(b) (custodial intervention), AS 11.51.125(e) (failure to permit visitation); note 1, above.

      334 P.3d 688, 694 (Alaska 2014).

      Id.

      Id. at 695.

      See AS 25.24.150(j) (allowing "only supervised visitation" if parent has history of perpetrating domestic violence, conditioned on parent completing parenting education program).


author: MAASSEN, Justice.

text:
    SMJ GENERAL CONSTRUCTION, INC., Appellant, v. JET COMMERCIAL CONSTRUCTION, LLC, Appellee.
    Supreme Court Nos. S-16785/16985
    Supreme Court of Alaska.
    April 12, 2019
    John C. Pharr, Law Offices of John C. Pharr, P.C., Anchorage, for Appellant.
    Michael C. Geraghty, Oles Morrison Rinker & Baker LLP, Anchorage, for Appellee.
    Before: Bolger, Chief Justice, Winfree, Stowers, Maassen, and Carney, Justices.
   MAASSEN, Justice.

I. INTRODUCTION

The parties entered into a construction subcontract that contained a broad dispute resolution provision. When disputes arose, the parties engaged in mediation as their subcontract required, reaching a settlement agreement by which they each "absolutely release[d] the other of and from any and all claims, demands and obligations of any kind arising from [the subcontract]." The settlement agreement, unlike the subcontract, contained no dispute resolution provision.

Two weeks after settlement the subcontractor filed suit against the contractor in superior court, seeking damages and an order setting aside the settlement agreement on grounds that the contractor had concealed facts that made it difficult for the subcontractor to obtain releases essential to the settlement. The contractor moved to dismiss, arguing that the subcontractor's claims were subject to the subcontract's dispute resolution provision. The superior court granted the contractor's motion and awarded it attorney's fees. The subcontractor appealed.

We conclude that the case should not have been dismissed because the parties, by the express language of their settlement agreement, released each other from "any and all" obligation to engage in dispute resolution as required by the subcontract. We therefore reverse the superior court's judgment and remand for further proceedings.

II. FACTS AND PROCEEDINGS

A. Facts

The parties assumed the following facts to be true for purposes of the motion to dismiss giving rise to this appeal.

In early 2016 Jet Commercial Construction, LLC (Jet), an Oklahoma corporation, entered into a contract with Kona Grill, Inc., for the construction of a restaurant in Honolulu, Hawaii. In May Jet entered into a subcontract with SMJ General Construction, Inc. (SMJ), an Alaska corporation, "to supply the materials and labor for the construction of the building and other improvements." The subcontract contained a dispute resolution provision that required the parties to first mediate any dispute and then submit it to arbitration if mediation was unsuccessful. The subcontract also included a choice-of-law and venue provision designating Oklahoma law and the courts of Cleveland County, Oklahoma for any lawsuits "pertaining to the enforcement of the provisions of this Agreement."

The parties had a number of disputes during construction. SMJ alleged, among other things, that after it bid on the basis of one set of building plans Jet switched them for another; that Jet failed to give SMJ the money necessary to pay its sub-subcontractors and suppliers and paid some of them directly, without SMJ's knowledge and with money Jet owed to SMJ; and that Jet constantly revised the building plans and ignored the change-order process set out in the subcontract.

The parties mediated their disputes as required by the subcontract's dispute resolution provision. On January 5, 2017, with the assistance of a professional mediator, they reached the following three-paragraph, handwritten settlement agreement:

Parties agree as follows:
(1) Each party hereby absolutely releases the other of and from any and all claims, demands and obligations of any kind arising from contract of May 2016 regarding Kona Grill, Honolulu project. SMJ will execute and deliver Release of all claims and waiver of liens. Mr. Chang will sign same individually. Counsel for Jet to prepare release.
(2) Jet will pay to SMJ the sum of $150,000.00 if SMJ will deliver to Jet within 30 days of today's date a fully executed release of all claims and lien waiver from Dong Hwan Kim individually and Hyan [sic] Yang Construction, said release & waiver to be notarized and on the form prepared by Jet's counsel.
(3) This yellow memorandum reflects the essential & material terms of the parties' agreement and will be followed by a more formal memorialization of same, to be prepared by Jet's counsel.

Tyson Chang was SMJ's president, and Han Yang Construction, owned by Don Hwan Kim, was one of SMJ's sub-subcontractors on the project. Neither Jet nor SMJ asserts that "a more formal memorialization of" the handwritten agreement, as contemplated by paragraph 3, was ever prepared.

Soon after the agreement was reached, SMJ learned of conduct by Jet, preceding the mediation, that impaired SMJ's ability to obtain the release from its sub-subcontractor, Han Yang Construction, as required by paragraph 2 of the settlement agreement. According to SMJ, Jet falsely informed a city inspector that Han Yang Construction had contracted directly with Kona Grill. SMJ alleged that Jet created a fictitious agreement to show this contractual relationship, signed the fictitious agreement on behalf of Kona Grill as the "Owner's rep" when it lacked the authority to do so, and filed the fictitious agreement with the City of Honolulu. SMJ asserts that Jet "concealed material facts from SMJ [during the mediation], namely that its fraudulent actions rendered the condition precedent to the settlement impossible for SMJ to comply with."

B. Proceedings

Two weeks after the mediation, SMJ filed a complaint in superior court. The complaint alleged three causes of action: fraud and misrepresentation, breach of the covenant of good faith and fair dealing, and negligence. It sought a ruling that the settlement agreement was void and "[a] money judgment against [Jet] in the principal amount of $782,061.48."

SMJ had unusual difficulty effecting service of process on Jet in its home state of Oklahoma. But Jet, through counsel, eventually filed a motion to dismiss pursuant to Alaska Civil Rule 12(b)(3) (improper venue) and (6) (failure to state a claim), while asserting a right to contest personal jurisdiction later. Jet argued that SMJ's claims were not properly before the court because of the subcontract's dispute resolution provision and the requirement that suits be filed in Oklahoma. In opposition, SMJ argued that the parties could no longer rely on the subcontract's dispute resolution and forum selection provisions because the subcontract was entirely superseded by the settlement agreement.

The superior court granted Jet's motion to dismiss in a perfunctory order stating only that it had considered Jet's motion "and the arguments and briefs of the parties." The court entered final judgment in Jet's favor and awarded it attorney's fees as the prevailing party. SMJ appealed both the order of dismissal and the attorney's fees award.

While the appeal was pending, SMJ filed a request for mediation with the American Arbitration Association (AAA). In October 2017 the AAA forwarded the mediation request to Jet and asked that the parties agree on a mediator. SMJ suggested several names to Jet and, alternatively, that the parties "re-convene telephonically with the mediator who did the first one in January." But the AAA received no response from Jet and later "put the matter on hold at SMJ's request."

SMJ then moved in superior court for relief from final judgment pursuant to Alaska Civil Rule 60(b), alleging that Jet's refusal to engage in mediation - after insisting on it as grounds for dismissing SMJ's lawsuit - constituted both newly discovered evidence and a change in circumstances that justified relief. Jet opposed the motion. It conceded that it had "not leaped at the chance to conduct another mediation with [SMJ]" but disputed that its failure to mediate constituted "new evidence" for purposes of Rule 60(b). It contended that SMJ could still demand arbitration and have the arbitrator determine whether mediation was mandatory, or, alternatively, that it could ask a judge in Oklahoma to decide whether Jet was required to mediate.

The superior court denied SMJ's Rule 60(b) motion, again without explanation, and SMJ filed a second appeal. We combined the two appeals. SMJ challenges the court's grant of Jet's motion to dismiss, its award of attorney's fees, and its denial of the Rule 60(b) motion. Because of our disposition of the first issue, we do not address the others.

III. STANDARD OF REVIEW

"We review grants of motions to dismiss under Civil Rule 12(b)(6) de novo, 'construing the complaint liberally and accepting as true all factual allegations.' " "In reviewing motions to dismiss, we view the facts in the light most favorable to the nonmoving party and draw all reasonable inferences in favor of that party."

"Whether [a] claim is arbitrable is a question of law subject to de novo review." "We review the interpretation of a contract de novo." "When applying the de novo standard of review, we apply our 'independent judgment to questions of law, adopting the rule of law most persuasive in light of precedent, reason, and policy.' "

IV. DISCUSSION

The superior court granted Jet's motion to dismiss SMJ's complaint without explaining its reasoning; we assume the court adopted Jet's arguments for dismissal. Jet's primary argument was that SMJ was required to raise its claims in arbitration pursuant to the subcontract's dispute resolution provision. Jet also relied on the subcontract's venue clause, requiring suits on the subcontract to be brought in Oklahoma. But because we conclude that the subcontract no longer governed the parties' rights and obligations once they entered into a subsequent agreement by which they "absolutely release[d] [each] other of and from any and all claims, demands, and obligations of any kind arising from" the subcontract, we find neither of Jet's arguments persuasive.

A. Arbitrability Is A Question For The Courts.

It is the task of the courts to decide whether the parties' two successive contracts - the subcontract and the settlement agreement - require SMJ to arbitrate its claims. As codified in Alaska, the Revised Uniform Arbitration Act provides that "[t]he court shall decide whether an agreement to arbitrate exists or a controversy is subject to an agreement to arbitrate." This is consistent with federal law. Federal courts presume that parties intend the courts to decide "arbitrability" issues, such as "whether the parties are bound by a given arbitration clause" and "whether an arbitration clause in a concededly binding contract applies to a particular type of controversy." "The presumption that arbitrability is a question for the courts can only be rebutted if the parties have 'clearly and unmistakably provide[d] otherwise.' "

The subcontract, though requiring a specific dispute resolution procedure, does not mention arbitrability. However, the subcontract's dispute resolution provision does provide that disputes "shall be submitted to mediation ... pursuant to the Construction Industry Arbitration Rules and Mediation Procedures of the American Arbitration Association" and that the next step, arbitration, "shall be conducted pursuant to" the same AAA rules and procedures. The AAA rules allow the arbitrator to determine arbitrability. The subcontract's reference to those rules could therefore be read as intending that questions of arbitrability are for the arbitrator, not the courts. But we need not decide whether to imply such an intent here, because whatever obligations the parties had under the subcontract have been explicitly released.

B. The Settlement Agreement Released The Parties From Their Contractual Obligation To Arbitrate Disputes.

When parties have successive contracts addressing the same subject matter, "it is a well settled principle of law that the later contract supersedes the former contract as to inconsistent provisions." A contract's arbitration provision may thus survive the parties' later settlement of claims arising under the contract - but only if it is consistent with the terms of settlement.

Unlike the subcontract, the parties' settlement agreement makes no mention of dispute resolution. The first paragraph of the settlement agreement reads: "Each party hereby absolutely releases the other of and from any and all claims, demands and obligations of any kind arising from contract of May 2016 regarding Kona Grill, Honolulu project." We interpret a settlement agreement the way we would any other contract, giving the words "their ordinary, contemporary, common meaning" unless they are "otherwise defined." The phrase "any and all claims, demands and obligations of any kind arising from [the subcontract]" could hardly be broader. Jet's demand for arbitration and SMJ's obligation to participate have no source other than the dispute resolution provision of the subcontract. And the parties expressly released each other from "any and all ... obligations" under that provision by the settlement agreement's plain language.

In Borough of Atlantic Highlands v. Eagle Enterprises, Inc. , a New Jersey court addressed a similar situation in language we find helpful. A contract for construction of a new borough building contained a mandatory arbitration clause. A number of disputes arose between the borough and the contractor over delays and payments; they eventually settled by entering into an agreement that said, among other things, that their "Contract [was] completed and this Agreement constitutes full and final satisfaction of all claims for compensation and neither party has any further claims for compensation or damages against the other." Two months later, the contractor made a claim for additional costs under the original construction contract, asserting in a letter to the borough that the settlement had been procured by duress. Then the contractor, "assum[ing] the continued existence of the arbitration clause in the original construction agreement," demanded that its claim be arbitrated pursuant to the AAA rules.

The trial court held that the parties' settlement agreement did not abrogate the construction contract's arbitration clause, but the appellate court reversed. It held that the construction contract, "which included the arbitration clause in issue, appears to have been knowingly canceled and settled-out by virtue of the" settlement agreement, particularly by its stipulation "that [the] Contract is completed" and neither party retains "any further claims for compensation or damages against the other." The court concluded: "We are at a loss as to how we might interpret this unambiguous language to mean anything other than that the original construction contract was to be regarded as history."

The Oklahoma Supreme Court considered a similar situation in Shawnee Hospital Authority v. Dow Construction, Inc. The hospital entered into a construction contract with the contractor for hospital additions. Disputes arose and the parties reached a settlement agreement that resolved all issues except "after-arising claims from latent construction defects," with the trial court "retain[ing] cognizance of controversies that would arise under [the settlement agreement's] provisions." When the hospital later brought latent-defect claims in court, the contractor argued that the claims were subject to the construction contract's arbitration provision. The supreme court affirmed the trial court's holding that the arbitration provision was waived by the settlement agreement, pointing to specific language in the settlement agreement that the construction contract was "hereby terminated with respect to any further performance obligations on the part of" the contractor except "with respect to" latent-defect claims and that the "court shall retain jurisdiction to reopen the case, if necessary, to conclude this litigation ... or to enforce the terms of this Settlement Agreement." The court held that the contractor's "rights and liabilities under the construction contract were discharged and stood superseded by the settlement agreement."

The language Jet and SMJ used to settle their differences was as direct and unambiguous as that in Borough of Atlantic Highlands and Shawnee Hospital Association : each party "absolutely release[d] the other of and from any and all claims, demands and obligations of any kind arising from" the subcontract. Like the New Jersey court in Borough of Atlantic Highlands , we cannot "interpret this unambiguous language to mean anything other than that the original construction contract was to be regarded as history." And absent that original contract, the parties had no obligation to arbitrate their claims.

The foregoing rationale also disposes of Jet's claim that the parties remain bound by the subcontract's choice-of-law and venue provisions. We note, however, that our decision today is based on the limited record presented on a motion to dismiss. We do not preclude the superior court's consideration on remand of extrinsic evidence that contradicts the plain meaning of the parties' settlement agreement, if any exists. We also do not address what happens if SMJ succeeds in having the settlement agreement set aside - specifically whether the parties' rights and obligations, including those pertaining to dispute resolution, revert to what they were under the subcontract.

V. CONCLUSION

We REVERSE the judgment of the superior court and REMAND for further proceedings consistent with this opinion. The award of attorney's fees to Jet is VACATED.

      Cornelison v. TIG Ins. , 376 P.3d 1255, 1267 (Alaska 2016) (quoting Kanuk ex rel. Kanuk v. State, Dep't of Nat. Res. , 335 P.3d 1088, 1092 (Alaska 2014) ).

      Id.

      Geotek Alaska, Inc. v. Jacobs Eng'g Grp., Inc. , 354 P.3d 368, 371 (Alaska 2015) (alteration in original) (quoting Lexington Mktg. Grp., Inc. v. Goldbelt Eagle, LLC , 157 P.3d 470, 472 (Alaska 2007) ).

      Mahan v. Mahan , 347 P.3d 91, 94 (Alaska 2015) (quoting Villars v. Villars , 277 P.3d 763, 768 (Alaska 2012) ).

      Alaska Fur Gallery, Inc. v. Tok Hwang , 394 P.3d 511, 514 (Alaska 2017) (quoting ConocoPhillips Alaska, Inc. v. Williams Alaska Petroleum, Inc. , 322 P.3d 114, 122 (Alaska 2014) ).

      See Alaska Wildlife Alliance v. State , 74 P.3d 201, 206 (Alaska 2003) (observing that although an appellate court will sometimes remand for an explanation if a trial court grants summary judgment without identifying which of multiple theories it found persuasive, "[i]n most cases involving dismissal or summary judgment, the grounds for the superior court's ruling can be discerned from the parties' motion papers"); Hoekzema v. State , 193 P.3d 765, 771 (Alaska App. 2008) (noting that because the judge "offered no explanation for his ruling" in favor of the State on a sentencing issue, the reviewing court "presume[s] that the judge adopted the prosecutor's argument").

      Neither party argues that we should apply any law other than Alaska's to the questions of arbitrability and contract interpretation raised on this appeal.

      AS 09.43.330(c) ; see also Classified Emps. Ass'n v. Matanuska-Susitna Borough Sch. Dist. , 204 P.3d 347, 353 (Alaska 2009) ("[A]rbitrability is a threshold question for the court, not the arbitrator.").

      Geotek Alaska, Inc. v. Jacobs Eng'g Grp., Inc. , 354 P.3d 368, 372 (Alaska 2015) (citing BG Grp., PLC v. Republic of Argentina , 572 U.S. 25, 34, 134 S.Ct. 1198, 188 L.Ed.2d 220 (2014) ).

      Id. (footnotes omitted) (quoting BG Grp. , 572 U.S. at 34, 134 S.Ct. 1198 ).

      Id. at 376 (alteration in original) (quoting State v. Pub. Safety Emps. Ass'n , 798 P.2d 1281, 1285 (Alaska 1990) ); see also Classified Emps. , 204 P.3d at 353 n.14 ("An exception to [the rule that courts determine arbitrability] applies when the contract clearly provides that the determination of arbitrability is for the arbitrator.").

      Am. Arbitration Ass'n, Construction Industry Arbitration Rules and Mediation Procedures R-9 (a) (2015), https://www.adr.org/sites/default/files/Construction_Arbitration_Rules_7May2018.pdf ("The arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope, or validity of the arbitration agreement.").

      See Oracle Am., Inc. v. Myriad Grp. A.G. , 724 F.3d 1069, 1074 (9th Cir. 2013) ("Virtually every circuit to have considered the issue has determined that incorporation of the [AAA] arbitration rules constitutes clear and unmistakable evidence that the parties agreed to arbitrate arbitrability."); Contec Corp. v. Remote Sol. Co. , 398 F.3d 205, 208 (2d Cir. 2005) ("[W]hen, as here, parties explicitly incorporate rules that empower an arbitrator to decide issues of arbitrability, the incorporation serves as clear and unmistakable evidence of the parties' intent to delegate such issues to an arbitrator.").

      Juneau Educ. Ass'n v. City & Borough of Juneau , 539 P.2d 704, 706 (Alaska 1975) (quoting NLRB v. Operating Eng'rs Local 12 , 323 F.2d 545, 548 (9th Cir. 1963) ).

      Cf. Primex Int'l Corp. v. Wal-Mart Stores, Inc. , 89 N.Y.2d 594, 657 N.Y.S.2d 385, 679 N.E.2d 624, 628 (1997) ("[A]bsent a more specific indication of intent to abandon contractual rights to an arbitration forum, a general release terminating the substantive rights of the parties to the contract will not nullify their obligation to submit to an arbitrator all of the disputes relating to that contract and its termination."); Schlaifer v. Sedlow , 51 N.Y.2d 181, 433 N.Y.S.2d 67, 412 N.E.2d 1294, 1296 (1980) ("[I]n the absence of express provision to the contrary, where the differences between the parties relate only to the substantive terms of their agreement, they will be held in releasing claims to have dealt only with such substantive rights and obligations, not with the separate and distinct subject of choice of the arbitration forum for the resolution of disputes.").

      Gaston v. Gaston , 954 P.2d 572, 574 (Alaska 1998) ("Settlement agreements should be interpreted as contracts provided that they meet minimal contractual requirements.").

      Norville v. Carr-Gottstein Foods Co. , 84 P.3d 996, 1001 n.3 (Alaska 2004) (quoting State v. Niedermeyer , 14 P.3d 264, 272 n.38 (Alaska 2000) ).

      312 N.J.Super. 188, 711 A.2d 407, 410 (1998).

      Id. at 408.

      Id. at 408-09.

      Id. at 409.

      Id.

      Id. at 408.

      Id. at 409-10.

      Id. at 410.

      812 P.2d 1351 (Okla. 1990).

      Id. at 1352.

      Id.

      Id.

      Id. at 1354-55 & n.16 (emphasis omitted).

      Id. at 1355 (emphasis omitted).

      312 N.J.Super. 188, 711 A.2d 407, 410 (1998).

      See Mahan v. Mahan , 347 P.3d 91, 94 (Alaska 2015) ("We examine 'both the language of [a settlement agreement] and extrinsic evidence to determine if the wording of the [agreement] is ambiguous.' " (quoting Villars v. Villars , 277 P.3d 763, 768 (Alaska 2012) )); Alaska Diversified Contractors, Inc. v. Lower Kuskokwim Sch. Dist. , 778 P.2d 581, 584 (Alaska 1989) ("Extrinsic evidence may always be received on the question of meaning.").

      See Borough of Atl. Highlands , 711 A.2d at 410 (holding that suit to vitiate settlement agreement "which does not contain an arbitration clause[ ] must first be addressed in [court]," and "[i]f it is found that the [settlement agreement] was induced by fraud or economic duress, then defendant may arbitrate its claim for additional monies in accordance with its demand for arbitration").