text:
    James D. BLOOD, Appellant, v. KENNETH MURRAY INSURANCE, INC. and Progressive Insurance Companies, Inc., Appellees.
    No. S-10123.
    Supreme Court of Alaska.
    April 25, 2003.

      Robert John, Law Office of Robert John, Fairbanks, for Appellant.
    Michael C. Kramer and Dennis C. Cook, Cook Schuhmann & Groseclose, Inc., for Ap-pellees.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

EASTAUGH, Justice.

I. INTRODUCTION

James D. Blood was injured while riding as a passenger in an automobile operated by an uninsured driver. Blood submitted an uninsured motorist/underinsured motorist (UM/UIM) claim, but his insurer denied coverage. Blood 'then sued the insurer and insurance agent. We consider here whether Blood waived his right to arbitrate UM/UIM issues by seeking a declaration of coverage and damages in his lawsuit against the insurer and the agent. Because we conclude that Blood did not waive that right, we reverse the order dismissing his lawsuit and remand for further proceedings, including trial of the coverage dispute.

II. FACTS AND PROCEEDINGS

In March 1996 James Blood purchased from Kenneth A. Murray Insurance, Inc. (KMI) an automobile Hability insurance policy issued by Progressive Insurance Company.

Blood did not pay the renewal premium on his policy, and Progressive sent three termination-of-coverage notices to him at the address in Progressive's files. Blood no longer lived at that address, and the letters were returned undelivered. Although Progressive mailed the notices, they were returned to KMI.

Blood later purchased another policy from KMI. The parties dispute whether Blood told KMI that he had moved and whether KMI should have asked Blood if he had moved. When Blood failed to make payments on this policy, Progressive again sent notices to Blood at the address in its files-Blood's old address.

On August 2, 1997 Blood was injured in an automobile accident while riding in a car driven by an uninsured driver. Blood filed a claim and a demand for arbitration with Progressive under his uninsured motorist coverage. Progressive denied the claim; it asserted that Blood's policy had lapsed before the accident because he had not paid the renewal premium. Progressive also denied Blood's arbitration request, on the ground that arbitration only applied to liability and damages issues, not coverage disputes.

Blood then sued Progressive and KMI for a declaration of coverage and an award of damages. Blood's complaint alleged that KMI was negligent in failing to use reasonable efforts to obtain his "last known address," and that therefore Progressive's attempts to cancel his policy for non-payment under AS 21.36.220 and AS 21.36.260 were ineffective.

In July 2000 Blood moved for partial summary judgment on the policy dispute. The defendants moved for dismissal. The court denied both motions because material factual disputes existed.

A five-day trial was scheduled to begin on February 26, 2001. During a hearing to resolve pretrial motions on the morning of the first day of the trial, Blood's counsel informed the superior court and the defendants that Blood was in Florida, and that financial difficulties prevented him from attending the trial in person. Blood's counsel asked that Blood be allowed to testify tele-phonically. The court refused, holding that Blood's credibility was critical to the case and that the defendants would be prejudiced if they could not test his credibility in person.

During further discussion about pretrial issues, Blood's counsel commented that he only sought a declaration of coverage from the court so that he could proceed to arbitration. The defendants responded that Blood had waived his right to arbitration by filing a lawsuit requesting damages, by failing to seek arbitration in his complaint (or not claiming that the defendants wrongly denied arbitration), and by indicating up to the day of trial an intention to litigate both damages and coverage issues.

The superior court heard more argument on this issue the next day. The court noted that Progressive had rejected Blood's demand for arbitration in 1997. The court also thought that the defendants were not prejudiced by Blood's failure to plead arbitration, because any effort they had put into defending a damages case would be equally applicable to an arbitration. Nonetheless, the court held that Blood had waived his right to arbitration by failing to request it in his complaint. The court cited Hillman v. Nationwide Mutual Fire Inswrance Co. and International Brotherhood of Teamsters v. King in support of its decision.

In light of its ruling that arbitration was no longer an available remedy, the court next held that Blood had to prove damages in court. Blood's counsel responded that he was "not prepared to present a damages case." The court relied on this concession and dismissed Blood's case, ruling that "if he can't prove damages, he can't prevail."

Blood's counsel then moved to "stay" the trial so Blood could testify in person and so he could amend his complaint to include arbitration. [Exe. 300 (28: 19-24)] The court denied these motions. Blood's motion for reconsideration was unsuccessful. Blood appeals.

HII. DISCUSSION

A. Blood Did Not Waive His Right to Arbitration.

1. Standard of review

Whether a waiver occurred is a question of fact. A trial court's finding of waiver will therefore be set aside on review only if it is clearly erroneous.

2. Failure to plead arbitration

Progressive's insurance policy gave Blood the right to arbitrate UM/UIM disputes. The superior court ruled that Blood waived this arbitration right by failing to state in his complaint that he was seeking arbitration. The court based its ruling on International Brotherhood of Teamsters v. King and Hillman v. Nationwide Mutual Fire Insurance Co., which it interpreted as holding that the remedy of arbitration "was waived by virtue of the failure to plead it."

In Teamsters, we held that the defendant had waived its right to demand arbitration by failing to plead an affirmative defense of arbitration as required by Alaska Rule of Civil Procedure 8(c), by availing itself of discovery procedures which were probably unavailable under arbitration, and by delaying for over three years in raising the issue of arbitration.

The superior court read Teamsters to require Blood to plead arbitration in his complaint or waive that remedy. In Teamsters we interpreted Rule 8(c) to require a defendant seeking arbitration to raise that remedy as a defense in its answer if it did not want to waive its right. But more recently, we explained in Loyal Order of Moose v. International Fidelity Insurance Co. that "a demand for arbitration [is not] equivalent to the affirmative defense 'arbitration and award.

The superior court cited Hillman for the same principle as Teamsters In Hillman, we held that the defendant insurance company did not waive its right to arbitrate the uninsured motorists claim. We ruled that a plaintiff who initiates litigation in violation of an arbitration clause cannot later claim waiver by the defendant.

The superior court in the present case did not explain why it thought Hillman supported its conclusion. Possibly it reasoned that if the insureds in Hillman could not claim waiver of arbitration by the defense because the plaintiffs knowingly initiated litigation in violation of the arbitration clause, then Blood, the insured in this case, could not oppose waiver when he did the same thing. But claiming and opposing waiver raise dis-tinet issues. The insureds in Hillman could not claim waiver because they had suffered no prejudice; whether Blood can successfully oppose a claim that he waived arbitration turns largely on whether his actions in pursuing his lawsuit unequivocally indicated a purpose to abandon his right to arbitrate.

The holdings in Teamsters and Hillman did not require Blood to plead arbitration in his complaint or be deemed to have forever waived that remedy. But Blood may nonetheless have impliedly waived his right to arbitration.

3. Implied waiver of contractual right to arbitrate

The law favors arbitration. Waiver is not to be lightly inferred, and courts should resolve doubts concerning whether there has been a waiver in favor of arbitration.

Waiver is an "express or implied voluntary and intentional relinquishment of a known or existing right." Progressive does not contend that Blood expressly relinquished his right to arbitration. The superior court did not consider whether Blood impliedly waived his right to arbitration. Instead, it determined that Blood's failure to specifically plead arbitration waived that remedy. Because we have concluded that Blood's failure to plead it in his complaint did not waive the arbitration remedy, we must determine whether Blood impliedly waived his arbitration rights. We conclude that he did not.

We explained the requirements for implied waiver of contractual rights in Powers v. United Services Automobile Ass'n, where we observed:

To prove an implied waiver of a legal right, there must be direct, unequivocal conduct indicating a purpose to abandon or waive the legal right. ... Neglect to insist upon a right only results in an estoppel, or an implied waiver, when the neglect is such that it would convey a message to a reasonable person that the neglectful party would not in the future pursue the legal right in question. Even where neglect results in prejudice to another party, for an implied waiver to arise there must be direct, unequivocal conduct indicating a purpose to abandon the right.[]

Blood argues that rather than engaging in "direct, unequivocal conduct indicating a purpose to abandon" or to waive his right to arbitration, he consistently sought arbitration before and during the litigation. In 1997 when he first submitted his claim to Progressive, Blood made a written demand for arbitration. Progressive rejected this demand, asserting that under the policy, arbitration only applied to disputes about liability or damages, not to disputes over the existence of coverage.

Blood's complaint did not seek arbitration or claim that Progressive wrongly rejected his demand for arbitration. Instead, it alleged breach of contract, bad faith, malpractice, negligence, and breach of fiduciary duty. It requested a "declaratory judgment stating that the Progressive policy was in effect" and sought "general and special damages ... interest, costs, attorney fees and other recovery as allowed by law."

In his memorandum accompanying his motion for partial summary judgment on liability, Blood asked the superior court to rule that the insurance policy was in effect and to "order the parties to arbitration." He also filed a proposed order that would have ordered the parties to arbitrate. Eight days before trial was to begin, Blood filed written objections to all of the defendants' proposed jury instructions that framed the case as a personal injury suit. He argued in his objections that if coverage exists, "this matter should be sent to an arbiter to determine the full amount of [Blood's] losses as all parties reasonably expected."

Blood's preliminary witness list and his Alaska Civil Rule 26(a) initial disclosures both indicate that he intended to litigate damages in court. Both documents identify physicians who had treated Blood for his injuries after the car accident, and the initial disclosure list indicates that the doctors would have information on Blood's "injuries, aftermath and prognosis."

But even though these documents were inconsistent with arbitrating the UM/ UIM claim, the superior court record also contains repeated assertions of Blood's interest in arbitration. Neglecting to insist upon a right only results in an implied waiver of that right if that neglect "convey[s] a message to a reasonable person that the neglectful party would not in the future pursue the legal right in question." To the extent that Blood's actions throughout the litigation process might have left a reasonable person confused about his intentions, that confusion simply confirms that there was no unequivocal waiver. Blood did not clearly and unequivocally abandon his intent to pursue arbitration.

The defendants' own conduct is consistent with a conclusion that they did not understand that Blood, by suing them, had unequivocally waived his right to arbitrate UM/ UIM issues, if there was coverage. Progressive's answer to Blood's initial complaint raised arbitration as an affirmative defense: "In the event that this court concludes that the policy in question remained in force on the date of the accident in question, plaintiff's claim is subject to the arbitration provision of the policy and plaintiff's claims should be dismissed in favor of arbitration." And defendants did not pursue the damages aspect of the case extensively during discovery. They did not depose any damage-related witnesses, they did not seek a physical exam of Blood under Alaska Civil Rule 35, and their witness lists did not name any damage-related witnesses. Motion practice centered on what both parties conceded was the main issue in the lawsuit-whether KMI should have learned of Blood's new address. The defendants devoted little attention to the liability and damages issues.

Because Blood sued not only Progressive, but also KMI, his damages claims do not compel a finding that he was unequivocally waiving arbitration. Had Blood sued only Progressive, his efforts to litigate liability and damages issues might have implied that he was no longer interested in arbitrating those issues if the court found coverage. But Blood was also pursuing KMI on the independent theory that it breached the duties that an insurance agent owes the insured. As to these claims, it is not obvious that Blood (or KMI) had any right to arbitration. Normally, someone in Blood's position, suing the agent on a theory it negligently failed to secure uninsured motorist coverage, would have to prove at trial both the existence of the insurance producer's breach of duties owed to the would-be insured and the damages the breach caused-ie., the amount recoverable had the coverage been in place. To prove the latter, he would have to prove the uninsured motorist's fault and the damages that fault caused. Therefore it is not unexpected that Blood took steps to prove liability and damages at trial in the context of his claim against KMI. The existence of the KMI claim consequently weighs against finding that Blood's lawsuit established an unequivocal waiver of a right to arbitrate liability and damages in his claim against Progressive.

We conclude that it was error to find that Blood waived his right to seek arbitration.

It follows that it was also error to dismiss Blood's case based on Blood's professed inability to present damages at the scheduled trial. Because any inability to prove damages would have had no bearing on the narrow coverage issue and would not obviate the need to try the coverage issue, and because Blood claimed he could try the coverage issue without testifying at trial, it was error not to conduct a trial to resolve the coverage issue. We therefore remand for further proceedings to resolve the coverage dispute.

Our conclusion that Blood did not waive his right to arbitration moots issues arising out of Blood's unsuccessful requests for a continuance and for leave to amend his complaint.

B. Blood's Trial Theory Will Control Whether He May Testify Telephoni-cally.

The superior court refused to allow Blood to testify telephonically. The court ruled that Blood's credibility was "so critical" that the defendants had to have the opportunity to cross-examine him in person before the Jury.

Blood's credibility is highly pertinent to the issues of liability and damages which will now be set for arbitration. Our ruling today makes it unnecessary to decide whether those rulings are error.

It is conceivable that on remand the issue of coverage will not turn on Blood's eredibility. If it does not, the dispute about whether he can testify by telephone will be immaterial. If Blood's testimony is relevant, trial of the coverage issue must be scheduled at a time Blood is prospectively available to testify in person. If that is not possible, the court shall provide Blood a fair opportunity to preserve his testimony, such as by videotaped deposition, upon adequate notice to opposing counsel.

We cannot foresee whether Blood's testimony will be relevant to the coverage issue. The relevance of his testimony depends on precisely what issues control the coverage dispute on remand.

C. The Superior Court Properly Denied Summary Judgment.

1. Standard of review

We review a denial of summary judgment de novo to determine whether any genuine issues of material fact exist and whether the moving party is entitled to judgment as a matter of law on the established facts. All reasonable inferences of fact from proffered materials must be drawn against the moving party and in favor of the non-moving party."

2. The superior court properly denied Blood's summary judgment motion against KML.

Blood argues that he was entitled to summary judgment because KMI had a duty to ask him for his new address in light of the three pieces of returned mail it had in its files when Blood obtained the second policy.

Blood relies on either AS 21.36.220 or AS 21.36.240, and AS 21.36.260 to support his argument. Section .220 imposes a duty on an insurance company to notify a policyholder about a cancellation of an existing policy. Section .240 imposes the same duty for failure to renew a policy. Both statutes refer to AS 21.36.260, which states that "if a notice is required from an insurer ... the insurer shall (1) mail the notice by first class mail to the last known address of the insured...."

Blood relies on Jefferson v. Alaska 100 Insurance, Inc. in arguing that an insurance agent has a "duty to exercise reasonable care, skill, and diligence ... to inform the insured of termination of coverage."

Blood also relies on Rosenberg v. Smidt in contending that the defendants have a duty to use due diligence to determine a party's "last known address." In Rosenberg, we analyzed the phrase "last known address" in a different context but concluded "that the last known address is that address most likely to give the affected party notice. The trustee is obligated to exercise due diligence to determine that address. . . ."

Even if Blood is correct that KMI and Progressive owed him such a duty, there remains the question whether the defendants exercised due diligence. As the superior court correctly noted:

Even if every single detail of what took place there is stipulated, which it's not, but even supposing it were, [the] finder of fact still has to determine whether [KMI] breached a duty it owed and whether [KMI] was negligent. That in itself is a fact question, not in the sense of what happened, but in the sense of what is traditionally determined by a trier of fact.! []

Assuming a jury could find that KMI was negligent for failing to ask for Blood's new address, we cannot hold that a jury could only reach this result.

Lastly, Blood argues that he should receive summary judgment on a theory of promissory estoppel. He argues that he relied on KMI's insurance expertise and that "it is reasonable to expect that when he gave KMI his [new] address, that address would be the one at which Progressive would contact him concerning his policy." This argument is without merit because there is a genuine dispute whether Blood gave KMI his new address. The superior court properly denied summary judgment to Blood on the coverage issue.

IV. CONCLUSION

We therefore AFFIRM the denial of summary judgment to Blood, but REVERSE the decision that Blood waived his right to arbitration, REVERSE the dismissal of Blood's case, and REMAND for further proceedings, including trial on the coverage issue.

      . AS 21.36.220 requires an insurance company to mail notice of cancellation to the insured before it cancels a policy.

      . AS 21.36.260 requires the insurance company to "mail the notice ... to the last known address of the insured."

      . 758 P.2d 1248, 1253 (Alaska 1988).

      . 572 P.2d 1168, 1173-75 (Alaska 1977).

      . Miscovich v. Tryck, 875 P.2d 1293, 1302 (Alaska 1994).

      . The UM/UIM portion of the policy states in pertinent part:
      Determination of whether an insured person is legally entitled to recover damages and the amount of damages will be made by agreement between the insured person and us. If no agreement is reached, the decision may be made by arbitration if we or the insured person make a written demand for arbitration....

      . 572 P.2d 1168 (Alaska 1977).

      . 758 P.2d 1248 (Alaska 1988).

      . Alaska Civil Rule 8(c) provides: "In pleading to a preceding pleading, a party shall set forth affirmatively ... arbitration and award...."

      . 572 P.2d at 1174.

      . Id. at 1173.

      . 797 P.2d 622, 629 n. 16 (Alaska 1990); see also Victor v. State Farm Fire & Cas. Co., 795 F.Supp. 300, 304 n. 6 (D.Alaska 1992) (observing that identical Federal Rule of Civil Procedure 8(c) "is limited to the situation where a dispute has already been arbitrated and an award has been obtained, not to situations where arbitration has not yet taken place").

      . 758 P.2d at 1253.

      . See Wausau Ins. Cos. v. Van Biene, 847 P.2d 584, 588 (Alaska 1993).

      . Bd. of Educ., Fairbanks North Star Borough Sch. Dist. v. Ewig, 609 P.2d 10, 13 (Alaska 1980) (affirming decision of arbitrator); Int'l Bhd. of Teamsters v. King, 572 P.2d 1168, 1173 (Alaska 1977).

      . S & R Co. of Kingston v. Latona Trucking, Inc., 159 F.3d 80, 83 (2d Cir.1998) (holding waiver occurred despite general policy favoring arbitration}.

      . See Doctor's Assocs., Inc. v. Distajo, 107 F.3d 126, 130 (2d Cir.1997) (ruling no waiver of right to. compel arbitration) (citing Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983)).

      . Powers v. United Servs. Auto. Ass'n, 6 P.3d 294, 298-99 (Alaska 2000) (holding no waiver absent direct, unequivocal conduct indicating purpose to abandon right to arbitration).

      . Id. at 299.

      . Airoulofski v. State, 922 P.2d 889, 894 (Alaska 1996).

      . Reeves v. Alyeska Pipeline Serv. Co., 926 P.2d 1130, 1134 (Alaska 1996).

      . Id.

      . AS 21.36.220 provides in pertinent part:
      (a) An insurer may not exercise its right to cancel a personal insurance policy unless, for a named insured who is
      (1) less than 70 years of age, a written notice of cancellation is mailed to the named insured as required by AS 21.36.260 at least 30 days before the effective date of cancellation; however, if cancellation is for nonpayment of premium, the notice shall be mailed to the named insured as required by AS 21.36.260 at least 20 days before the effective date of cancellation....

      . AS 21.36.240 provides in pertinent part: "An insurer may not fail to renew a policy unless a written notice of nonrenewal is mailed to the named insured as required by AS 21.36.260 at least 20 days for a personal insurance policy...

      . Jefferson v. Alaska 100 Ins., Inc., 717 P.2d 360, 364 (Alaska 1986).

      . 727 P.2d 778 (Alaska 1986).

      . Id. at 783.

      . See Beaux v. Jacob, 30 P.3d 90, 96 n. 5 (Alaska 2001) (noting that "[wlhether particular conduct is negligent is a question of fact normally reserved for the trier of fact''); Dobos v. Ingersoll, 9 P.3d 1020, 1026 (Alaska 2000) (explaining that "whether [a party] was negligent was a question of fact properly determined by the jury").


source: Caselaw Access Project

author: CARPENETI, Justice.

license: Public Domain

text:
    Henry H. FORD, Appellant, v. Darlene D. FORD, Appellee.
    No. S-10188.
    Supreme Court of Alaska.
    April 25, 2003.

      Karla F. Huntington, Anchorage, for Appellant.
    Chrystal Sommers Brand, Juneau, for Ap-pellee.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

CARPENETI, Justice.

I. INTRODUCTION

Henry H. Ford appeals from the superior court's decision upholding the settlement agreement reached between him and Darlene D. Ford, its order enforcing the agreement, and its findings of fact and conclusions of law. Because the superior court's finding that the parties intended to enter into a settlement was not clearly erroneous, and its enforcement order was well within its disceretion, we affirm its decision.

II. FACTS AND PROCEEDINGS

Darlene D. Ford and Henry H. Ford were married in Sitka in 1978. In October 1999 Darlene sued for divorce, alleging that Henry desired a divorce and that she would not contest a divorce. Although Henry and Darlene had no children, they did have marital property to divide.

Prior to his marriage to Darlene, Henry owned property in Craig. During their marriage, Darlene and Henry developed the property into the Ford Marina, although it is disputed as to how much each party contributed. The marina is the parties primary asset.

Darlene and Henry hired Vance Sanders to conduct a mediation on August 31, 2000. Both parties were represented by counsel during the mediation process. The mediation produced a settlement, and the parties went into an empty courtroom to place their agreement on the record. Because the mediation did not end until approximately 6:80 p.m., no court personnel were present when the parties recorded the settlement. Sanders recited the settlement and, as he had invited counsel to do, was interrupted numerous times by both parties' counsel for clarification purposes. At no time during the recital did Sanders ask Darlene or Henry whether they understood the contents of the agreement, whether the agreement was voluntarily entered into, or whether they were willing to abide by its contents. Chrystal Sommers Brand, counsel for Darlene, was responsible for preparing the settlement documents.

On October 5 counsel for Henry, H. Clay Keene, informed the Ketchikan court that the mediation had settled the case in its entirety. That same day, Brand filed a notice of settlement with the court. In it, Brand notified the court that the parties had settled and that she was in the process of preparing the settlement papers.

The parties scheduled a hearing to put the settlement on the record on December 13. On November 28 Keene requested a continuance of the hearing because Brand had failed to provide him with a copy of the agreement. Brand filed a non-objection to Keene's request. In it she stated that the hearing would only entail entry of the final decree and findings, as the parties had settled the case. The continuance was granted and the hearing rescheduled for February 5, 2001. Prior to the February 5 hearing, Keene asked for another continuance because he had not yet had the chance to review the settlement documents with Henry.

On February 14 Darlene moved to enforce the settlement agreement. In the motion, Darlene argued, among other things, that Henry had failed to vacate the marina by December 31, 2000 as the parties had agreed he would. Darlene further argued that Henry had failed to remove his personal property from the marina, failed to clean up the property, and failed to ensure that any other persons residing there also vacated the property, as they agreed he would. All of these actions, Darlene argued, had been agreed upon so that the marina could be sold under the best possible conditions as quickly as possible. Darlene and Henry were then to divide the profits from the sale according to their agreement.

Henry opposed Darlene's motion to enforce the settlement agreement. He asked the court to allow the case to proceed to trial with his new counsel, Michael P. Heiser. The basis of Henry's objection and motion was that, at the time of the mediation, he was in poor health. Henry claimed that because of his health he could not concentrate during the mediation and "did not understand the true nature and consequences of his actions and did not know how to express settlement intentions to his attorney present at the conference." Henry claimed, "All I [knew] is [that] I needed to have the hearing end so I could get rest and get away from the intolerable stress of the mediation."

Henry contended that had he not been in poor health, he would have "vigorously opposed" the sale and distribution of the marina, as he believed it to be his separate property, improved and developed with his separate funds. Henry also claimed that Darlene "devoted very little, if any, effort to the management, maintenance or improvement of the property" and that "[the title to this property was put in both our names on advice of counsel for estate planning purposes only." Henry also argued that Sanders's failure to inquire as to whether Henry understood the nature of the settlement and if he entered into the agreement freely and voluntarily was grounds for finding no agreement had occurred.

Darlene responded to Henry's objection to her motion to enforce and she opposed Henry's cross-motion to set for trial. Darlene contended that the transcript of the settlement recital showed that Henry was an active participant in the proceeding. Darlene also noted that Henry made no specific objections that the settlement documents submitted by Brand did not conform with the settlement agreed to at mediation. Thus, assuming the court found the agreement was enforceable, Darlene argued that the proposed findings of fact and conclusions of law should be entered. Darlene attached an affidavit from Vance Sanders stating that Darlene and Henry did reach a final settlement and that the settlement was placed on the record.

In his reply, Henry requested an eviden-tiary hearing to determine whether the case should be set for trial. Henry filed an additional affidavit on March 27. In it, he states:

I also want to point out that I was confused about the purpose of mediation. I believed that the mediation involved hashing out various points of view before a referee. I thought anything at the mediation was not final until I had an opportunity to look over a document and decide whether or not to sign it. I thought a contract had to be signed. I thought if I did not like what a document said we could go to trial.

Superior Court Judge Michael A. Thompson held a hearing on all pending motions in April 2001. At the hearing, Henry and Darlene testified. Henry testified that the marina was his separate property and that he had no recollection of the placement of the settlement on the record, claiming that his memory was very vague and that he did not understand the proposed division of the marina. Henry testified that Darlene's only participation with the marina was as its bookkeeper.

Darlene testified that she believed the marina was marital property. After the parties were married, Darlene claimed to have helped develop the marina, helping Henry to build the dock as well as other tasks. Darlene also testified that she understood the agreement at the time of the recital to be final and binding.

The court found that the mediation had produced a binding settlement agreement between the parties Judge Thompson then issued an order to enforce the settlement and signed the decree of divorce and findings of fact and conclusions of law submitted by Darlene.

Henry appeals.

III. STANDARD OF REVIEW

We analyze a settlement agreement under traditional contract principles. [Clourts need not accept property settlements as controlling when the facts indicate that an agreement was not made with full understanding. "Whether the parties to an informal agreement become bound prior to the drafting and execution of contemplated formal writings is a question of intent." We determine the parties' intent under the clearly erroneous standard by looking to the surrounding facts and cireumstances in each case. "A finding of fact is clearly erroneous when [we are] left with a definite and firm conviction that the trial court has made a mistake."

We review questions regarding a trial court's response to a motion to enforce a settlement under the abuse of discretion standard. We will find an abuse of discretion has occurred when, after a review of the entire record, we are left with a definite and firm conviction that the trial court has erred in its ruling.

IV. DISCUSSION

A. The Superior Court's Finding that Darlene and Henry Intended To Enter into a Final Agreement when They Placed Their Property Settlement on the Record Directly After Mediation Was Not Clearly Erroneous.

Henry contends that the trial court erred in determining that the recital of the agreement reached on August 31 was a final and binding settlement. We disagree.

1. Expressed intentions

Henry claims he did not think recitation of the agreement after mediation constituted a final agreement. "In determining the parties' intent, [we] look first to the parties' expressed intentions."

a. The transcript

Preliminarily, Henry notes that the transcript available to the superior court is incomplete as it ends before the termination of the proceeding. Henry argues that Judge Thompson could not have properly assessed whether the recital led to a binding settlement because he did not rely on a complete transcript of the proceeding. From his comments at the hearing, it appears that Judge Thompson relied on the incomplete transcript. Judge Thompson made reference to page numbers from the incomplete tran-seript at the hearing.

Henry's argument was not raised below and is therefore waived. Moreover, the superior court's failure to use a complete transcript in rendering its decision was not clearly erroneous. The dialogue missing from the transcript used by the trial court only further supports Judge Thompson's findings that Henry intended the settlement to be binding, as it makes clear the parties' intent that the agreement is final. There are some minor instances where the incomplete and complete transcripts differ; however, none of these differences provides any basis for reversing the trial court's decision.

b. Judge Thompson's findings

At the April 12 hearing, Judge Thompson found that the degree of Henry's participation indicated his intent to engage in a final, binding process on the day of mediation. Judge Thompson noted eleven separate instances in the recital process where Henry made topical and relevant observations regarding settlement of various issues:

The subjects being discussed at the time he's making his contribution, all of which seem sensibl[e] contributions on his part where he points out the difficulty in disposing of a documented vessel, where he reminds the participants that Ms. Ford can't mail firearms.... I mean these are all very sensible observations. [These dol not appear to be observations that would be made by a person who is in so much pain [he] can hardly be aware of what's going on around him. He seems to have been a full-fledged participant there.

There is no expression to suggest that Henry was suffering any type of pain, that he in some way did not agree with the final settlement, or that he did not understand what was taking place. Henry argues that this is because he "tuned out" and just wanted the mediation to be over.

We rejected a similar argument in Pavel v. Curran. In Pavek, Curran was present and spoke at the hearing and did not object to the terms of the agreement. Curran then claimed she did not understand the significance of the agreement and alleged that the settlement was invalid. We found Curran's claim "groundless," finding that her presence at the hearing without objection and her participation in it implied her understanding. Similarly, in light of Henry's active participation, particularly at the end of the day when he now alleges he was exhaust, ed and unable to understand the process, the superior court's finding that Henry intended to settle the case on August 31 was not clearly erroneous.

c. The proposed later reduction of the settlement to writing

Henry next argues that the parties' stated intention to reduce the agreement to writing shows that their oral recital was not a binding agreement. But a brief review of all of the participants' statements shows the incorrectness of Henry's position. Sanders began the recital process by stating that a settlement had been reached and was going to be placed on the record. Brand stated that it was her intent to put the agreement in written form so that the parties could have something to reference but that the settlement was final Keene stated that the agreement, as stated on the record, was binding on Henry and Darlene. Sanders ended the proceedings by stating that Alaska law was clear the parties would be held to the settlement as set out at that point by the parties. Under these cireumstances, the references to a later writing do not support Henry's position that the recital was not final and binding.

d. Henry's age and condition

Henry also claims that his age and condition affected his understanding and that it was error for Judge Thompson to find that his age could only have benefitted him throughout the mediation process. It is true that Henry has well-documented medical problems and that he was 73 years of age at the time of the litigation below. There is no evidence, however, that these conditions affected Henry at the mediation. Moreover, Henry was represented by counsel. Neither Keene nor any doctor has submitted an affidavit stating that Henry was incompetent at the time, that he did not understand the proceedings, or that he had trouble concentrating. And his active participation throughout the recital process undereuts his present claim. Henry asserts that he felt safe in tuning out because he did not believe the agreement was final, but there is no contemporaneous evidence that Henry did in fact "tune out."

Rather, Henry actively participated in discussions on how the marina would be divided: Henry's counsel asked how an allowance granted to Darlene for her efforts in marketing the marina would be impacted by expenditures over the allotted amount. When Henry heard the answer, he commented, "That's fair." He volunteered to contact the Coast Guard regarding disposal of garbage at the marina. Henry also stated that he would work to ensure that a vessel was removed from the marina prior to his vacating the property. He discussed how profits from the sale of oil containers would be shared. In all, he contributed no less than seven comments to the discussion concerning the marina's division.

From these statements, we conclude that Judge Thompson's findings that Henry not only participated at the mediation, but that it was his intent for Darlene to sell the property and that the proceeds from that sale would be distributed to the parties, and that Henry intended the settlement to be binding, were not clearly erroneous.

e. Extrinsic circumstances

Henry last argues that extrinsic cireum-stances support his contention that he did not intend to be bound by the agreement. While the trial court pointed to the delay from the August mediation to Henry's first objection to the settlement's validity in February as evidence that Henry originally intended to be bound and was now only suffering from "buyer's remorse," Henry argues that during the entire period he did not believe any agreement had occurred; therefore he had no reason to ask his lawyer to try and rescind the agreement. Henry claims his delay was simply the result of Brand's delay in reducing the agreement to a written document. Henry argues that his failure to abide by the agreement was further evidence of his not knowing that it was binding.

Henry's argument does not account for what actually occurred during the recital and is not persuasive as to what occurred later. Henry was present after the mediation when Sanders, Brand, and Keene (Henry's lawyer) stated that the agreement was binding. Moreover, it is not entirely true that Henry failed to abide by the agreement. At one point Keene requested an extension of the date Henry was to leave the property, which suggests that Henry did in fact know there was an agreement. Also, at both sides' request, the trial was taken off the calendar, and no further settlement conferences or litigation ensued. Yet Henry took no step to resolve a matter that, according to his present position, was unresolved. Finally, we agree with Darlene's contention that to credit Henry's argument that his failure to abide by the agreement is evidence that he did not believe he was bound by it opens the door for any party to a contract to breach the contract and then use that breach as evidence of his or her belief that no contract had been entered.

2. Enforcing an agreement where the mediator failed to ask the parties whether the agreement was entered into voluntarily and whether they understood the agreement does not violate public policy.

Henry contends that it would violate public policy to enforce an agreement where no one asked the parties whether they had entered into it voluntarily, understood its contents, and agreed to be bound. Henry argues that the presumption of enforcing settlements should not apply in these cireumstances. Darlene responds that any such "magic words" requirement would itself be against public policy. We agree with Darlene.

Henry argues that, because he was not asked whether he entered into the agreement voluntarily, no valid settlement was reached. He clairas that the court erred in applying the presumption in favor of settlement, as that presumption only applies to those settlements that are valid. Henry misconstrues both the law and Judge Thompson's statements. In his remarks, Judge Thompson stated that settlements are favored and should be enforced. But Judge Thompson was careful to note that the presumption applied only to a valid settlement: "for their own sake we should enforce settlements when they're reached." (Emphasis added.) Thus, it is clear that the court carefully determined the settlement to be valid before it applied the presumption of enforcement.

In Crane v. Crane, we held that a party need not expressly state on the record that it entered into a settlement agreement voluntarily for the agreement to be considered valid. We made this finding based on the fact that Crane was represented by counsel and by looking to the record. Henry distinguishes himself from Crane by arguing that, unlike Crane, he did not have the final settlement agreement before him, he was not present before a superior court judge, and he was not required to read or sign off on a written document. These distinctions do not call for a different result. Henry did not have an agreement before him because the parties had yet to put the oral agreement into written form. And the presence of a superior court judge is not required for the parties to enter into a binding agreement. Henry argues the lack of a judge is evidence that he did not intend the recital to be final. However, non-judicial settlement officers, mediators, and arbitrators are frequently used and Henry's rule would require a judge's presence to complete an agreement in any of these settings, an obviously unattractive rule.

It is true that this case would be easier for us-and would have been easier for the superior court-if the mediator had directly addressed the parties during the recorded session and confirmed that each understood the settlement and agreed with it. Simple affirmations by the parties of their understanding and intent to be bound may have obviated the need for an extensive evidentia-ry hearing and for later detailed reviews of the recitations made at the recorded session. Nonetheless, we reject Henry's contention that, without particular questions or recitations when a settlement is put on the record, either party may successfully attack the settlement. We encourage judges and mediators who conduct settlement proceedings, and who reach settlements, to confirm on the record directly with the parties their understanding of the settlement and their intentions to enter into it, but we reject the proposition that the failure to conduct such inquiries is necessarily fatal to the entry of a settlement.

It was not clear error for Judge Thompson to find that Henry did intend to settle. It was not an abuse of discretion for Judge Thompson not to have required statements of voluntariness from the parties for the agreement to be valid.

B. The Trial Court Properly Entered Findings of Fact and Conclusions of Law, and Minor Factual Errors in the Findings and Conclusions Do Not Require Reversal.

Henry claims the trial court committed legal error by not reading the findings of fact and conclusions of law before signing them. He points to two mistaken dates and a misstatement that Henry appeared "personally" rather than "telephonically" at the hearing. Henry also notes a substantive error in the divorce decree: The property table states that the Ford Marina is valued at $1,400,000 and apportions $700,000 to both Darlene and Henry, whereas paragraph 2 of the decree states that fifty-five percent of the value of the marina should be distributed to Darlene and forty-five percent to Henry.

Darlene argues in response that Henry never properly objected to these factual errors at the trial court level to allow for their correction. She further contends that the errors are merely clerical and do not affect the substance of the divorce decree or findings of fact and conclusions of law. We agree with Darlene.

Henry failed to bring these errors to the superior court's attention after initially requesting additional time to bring objections under Alaska Rule of Civil Procedure 78(b), raising the possibility that he waived the alleged errors. But we need not decide whether Henry's failure to file objections under Rule 78(b) constituted a waiver of these arguments, because Henry's arguments for reversal lack merit.

Although Henry is correct that the decree of divorce and findings of fact and conclusions of law do contain factual errors, the errors are not substantial. They hardly constitute evidence that Judge Thompson did not read the documents. Further, the one substantive error does not warrant undoing the settlement. This is because the mistake in the distribution in the property table is evident from the text of that table. The property table states "entire property (upper and lower) to be sold and proceeds distributed as set forth in Paragraph 2 below." Paragraph 2 thus controls and the division should be governed by the fifty-five percent/forty-five percent division in Darlene's favor found in that paragraph. Moreover, even if the document were ambiguous, the transcript of the recital of the agreement makes clear that the parties intended a fifty-five percent/forty-five percent split. There is, therefore, no basis to reverse the superior court's findings and conclusions. It is sufficient that the superior court correct the clerical errors concerning dates, note that Henry participated telephonically rather than in person at the hearing, and insert the correct distributional figures (fifty-five and forty-five percent of $1,400,000 for Darlene's and Henry's shares, respectively, of the marina).

C. The Trial Court Did Not Abuse Its Discretion in Issuing the Order To Enforce the Settlement Agreement.

Henry argues that the order to enforce the settlement agreement grossly exceeded the terms of the actual agreement, a modification the court did not have the power to enforce. We disagree.

Under the decree Darlene was charged with marketing the marina, and Henry agreed to undertake certain tasks to aid in that endeavor. The decree provided Darlene with payment for her services and advanced her the sum of $3,500. Darlene was to notify Henry of proposed expenditures in excess of this amount and obtain his consent. Darlene and Henry would then split these costs. When Henry failed to meet his obligations, Judge Thompson ordered Henry to pay Darlene $10,000 as an advance for her expenses in hiring people to help her clean up the Ford Marina. Henry claims this was a unilateral modification of the property settlement and thus impermissible.

Henry relies on Davis v. Dykman, where we found a settlement agreement invalid because it was uncertain. The agreement failed to state a dollar amount of the settlement or any method for calculating the dollar amount. Although the parties asked the superior court to fill in this gap for them, we held that " [the courts should not impose on a party any performance to which he [or shel did not and probably would not have agreed." Henry argues that the trial court should not have been allowed under Davis to order the additional payment. But Davis is inapposite. Here the trial court was faced with remedying a breach, not filling in the gaps of an agreement. Henry did not fulfill any of his responsibilities under the agreement with regard to the Ford Marina. He did not clean the property, sell the equipment on the property, or ensure the property was vacated by its tenants. Indeed, the condition of the property allegedly worsened after the August 31 mediation.

In order to remedy the situation, Darlene requested in her motion to enforce that she be entitled to take all necessary actions and be compensated for her actions to ready the marina for sale. She also requested that she be advanced $10,000 for this purpose. Judge Thompson thus ordered Henry to pay Darlene an advance of $10,000 to accomplish this. Henry did not object to this request at the superior court level and only now voices his opposition. The order falls within the superior court's powers to enforce its own orders and was not an abuse of the court's discretion.

Henry also asks that the award of attorney's fees be vacated as an improper exercise of the court's authority. We decline to consider the argument because it is inadequately briefed.

v. CONCLUSION

The superior court's finding that Henry intended to be bound by the recorded recital of the parties' settlement agreement after mediation on August 31 was not clearly erroneous. The superior court properly issued findings of fact and conclusions of law, and factual errors in the findings should be corrected upon remand. The superior court did not abuse its discretion in issuing the order to enforce the property settlement. We therefore direct that the clerical and computational errors in the decree be corrected upon remand and we AFFIRM the decision of the superior court.

      . "Courts will treat settlement agreements as contracts provided they meet minimal contractual requirements." Crane v. Crane, 986 P.2d 881, 885 (Alaska 1999) (citing Gaston v. Gaston, 954 P.2d 572, 574 (Alaska 1998); Davis v. Dykman, 938 P.2d 1002, 1006 (Alaska 1997)). To form a contract, an offer including all essential terms, an unequivocal acceptance of those terms by the offeree, consideration, and an intent to be bound by the contract are required. Young v. Hobbs, 916 P.2d 485, 488 (Alaska 1996).

      . Notkin v. Notkin, 921 P.2d 1109, 1112 (Alaska 1996).

      . Juliano v. Angelini, 708 P.2d 1289, 1291 (Alaska 1985).

      . Id.

      . Hamilton v. Hamilton, 42 P.3d 1107, 1111 (Alaska 2002).

      . Dickerson v. Williams, 956 P.2d 458, 462 (Alaska 1998).

      . Liimatta v. Vest, 45 P.3d 310, 313 (citing Peter Pan Seafoods, Inc. v. Stepanoff, 650 P.2d 375, 378-79 (Alaska 1982)).

      . Juliano, 708 P.2d at 1291.

      . A transcript prepared by another transcriber was lodged with this court and contains a complete record of the proceeding.

      . 754 P.2d 1125 (Alaska 1988).

      . Id. at 1126-27.

      . Id. at 1127.

      . Id. (alleging agreement did not provide enough security in the event Pavek defaulted on payments).

      . Id.

      . It is true that we qualified our holding in Pavek by noting that Curran made no claim that she was defrauded or under duress. Id. Although Henry does allege duress here, Judge Thompson found Henry was not a credible witness on this point when he testified at the April 12 hearing, a finding within the ambit of the superior court, not the appellate Barios v. Brooks Range Supply, Inc., 26 P.3d 1082, 1087 (Alaska 2001) ("Witness credibility determinations are left to the trial court.").

      . and settlements are favored in law because they simplify, shorten and settle litigation without taking up valuable court resources." Murphy v. Murphy, 812 P.2d 960, 965 (Alaska 1991) (internal quotations omitted). This "principle applies in the context of divorce property settlements." Notkin v. Notkin, 921 P.2d 1109, 1111 (Alaska 1996).

      . 986 P.2d 881 (Alaska 1999).

      . Id. at 886.

      . Id.

      . Henry argues that "[bloth the decree and findings erroneously state that the Divorce hearing was on February 5, not April 13." (The hearing was actually on April 12.) And he notes that "the Decree of Divorce misstates the date of the initial recitation as August 2001, not August 2000."

      . The decree as well as the findings both state the hearing took place on February 5, whereas it actually occurred on April 12. That is most likely because the hearing was at one point scheduled for February 5. These pleadings were lodged January 30, 2001 to allow Henry five days to make objections to them under Alaska Rule of Civil Procedure 78(b) in order that they could be signed at the February 5 hearing.
      The statement that Henry appeared "personally" rather than "telephonically" is factually incorrect, although it may merely reflect incorrect usage. The decree does contain a typographical error concerning the year of mediation.

      . 938 P.2d 1002 (Alaska 1997).

      . Id. at 1006.

      . Id.

      . Id. at 1007 (quoting Rego v. Decker, 482 P.2d 834, 837 (Alaska 1971)).

      . Johnson v. Johnson, 544 P.2d 65, 72 (Alaska 1975) (noting that the court's inherent power to enforce its decrees may justify a court in going even beyond the parties' requests).

      . Stosh's I/M v. Fairbanks N. Star Borough, 12 P.3d 1180, 1183 & n. 12 (Alaska 2000).


author: MATTHEWS, Justice.

text:
    Edward M. CORBIN, Appellant, v. Winona L. CORBIN, Appellee.
    No. S-10281.
    Supreme Court of Alaska.
    May 2, 2003.

      Maryann E. Foley, Law Office of Maryann E. Foley, Anchorage, for Appellant.
    Winona L. Corbin, pro se, Vancouver, Washington.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

MATTHEWS, Justice.

The issues raised in this case all pertain to the calculation of child support. The parties have three children: Justin, born in March 1984; Jarrod, born in May 1988; and Jame-son ("Jamie"), born in September 1993. This action was brought in July 1999 and the parties separated in January 2000. The parties reached a child custody agreement on November 6, 2000, and it was incorporated by reference in the decree of divorce that was entered on March 1, 2001. The decree, however, did not resolve child support issues. Instead, the findings accompanying the decree provided that "child support shall be pursuant to Civil Rule 90.8 under the divided custody formula. The parties are to exchange updated Child Support Guidelines Affidavits within ten days of the date of this court order." After the parties made a number of submittals, the court entered an order governing the payment of child support on May 29, 2001. The court used the parties' year 2000 incomes for child support purposes. Edward's adjusted annual income for 2000, and his projected income for 2001, was $39,708.54. Winona's adjusted annual income was $22,007 for 2000 and $21,787 for 2001. The court also recognized that the parents had an obligation to pay support to third parties during periods third parties had cared for the children. Facts particular to specific points on appeal are stated below.

Child Support-January-May 2000

The most factually complicated issue concerns the award of child support for five months in the year 2000. The superior court ordered Edward to pay Winona monthly support for January and February of $846.35. For March through May Winona was ordered to pay Edward monthly support of $86.82. For the reasons that follow we conclude that Edward owes Winona $121.70 for January and February, and Winona owes Edward $80.03 for March and April, and $403.46 for May.

When the parties separated in January 2000 the two older boys, Justin and Jarrod, were living with their maternal grandparents in Washington. From January through April physical custody of Jamie was split equally between the parties. In early May Winona moved to Washington and Jamie stayed with Edward in Alaska. From March through May Justin stayed with Edward.

A. January and February

For January and February the court ruled:

[The parties have a duty to support all three minor children, not just Jamie.
Neither parent had custody of Justin or Jarrod during this time period. A parent is obligated to provide support for his or her children. If neither party had custody of Justin or [Jarrod], they may owe support to a third party who provided support to the children. Because neither party had physical custody of Justin and Jarrod, this court will calculate support for this period based on a 50/50 shared custody agreement for all three children. Edward's support obligation for all three children is $365.10 less $18.75 health credit, for a total support obligation of $346.35. [Footnotes omitted.]

Edward argues that basing support on a 50/50 shared custody arrangement for all three boys is in contravention of Civil Rule 90.3(i)(2) which provides:

If, in addition to a support obligation to a third party, one or both parents retain primary or shared physical custody of at least one of their children, the support obligation between the parents is calculated pursuant to the other paragraphs of this rule, without consideration of the third party custodian or any children in the custody of the third party custodian, except that the percentage in 90.8(a)(2) must be adjusted pro rata for the number of children in the primary custody of a parent, or shared custody of the parents, compared to the total number of children. After that calculation is completed, any support owed may be offset with support owed to a third party custodian under the preceding sub-paragraph in order to minimize transactions.

The Commentary to Rule 90.8 Section XLB reiterates the above language and gives guidance as to how to calculate support as between the parents in cases where a child is in the custody of a third party.

The superior court's assumptions and thus its calculations are not consistent with Rule 90.3(i)(2). The rule directs the court to caleulate the support obligation "without consideration of the third party custodian or any children in the custody of the third party custodian." Here the court calculated support based on shared custody of all three children. Instead, the court should have used the shared custody method set out in Rule 90.3(b) for one child as modified by Rule 90.3(0)(2). The adjusted pro rata percentage called for in Rule 90.8(i)(2) would be 11%, 33% for three children under (a)(2)(C) multiplied by one representing the child in shared custody divided by three representing the total number of children. The result is that for these two months Edward owes Wi-nona $121.70 per month for the support of Jamie, minus the health insurance deduction of $18.75 per Rule 90.3(d)(1).

The maternal grandparents are entitled to support for the older boys for these months from both Edward and Winona.

B. March, April, and May

The trial court calculated child support for the months of March, April and May "as if the parents had shared custody of both Jarrod and Jameson and Edward [had] primary custody of Justin."

Edward argues that court's calculation was erroneous for each of the following three reasons:

1. For all three months Jarrod was in the custody of his grandparents and thus should not have been involved in the calculation of support owed between the parents.

2. With regard to March and April, rather than considering Justin and Jamie separately, the former under primary custody guidelines (Rule 90.3(2)), the latter under shared custody guidelines (Rule 90.3(b)), the court should have considered them as one unit and averaged the amount of time they spent with each parent to determine which custody guideline to use. Because Justin was with Edward 100% of the time and Jamie was with Edward 50% of the time, this would result in Edward having both children 75% of the time and would, so Edward argues, require the use of Rule 90.3(a).

3. With regard to May, Jamie was in the primary physical custody of Edward, and the court erred in using the shared physical custody formula.

Edward's first point is correct for the reasons described above. The grandparents are entitled to support for Jarrod from each parent.

Edward's second point is not correct. The trial court correctly decided that Jamie and Justin presented a hybrid custody situation-Jamie in shared custody and Justin in sole custody-that should be governed by the formula we used in Turinsky v. Long. Under that formula, primary and shared custody support amounts are offset using percentages that are prorated for the total number of children. Winona's primary support obligation for Justin would be $201.78 per month ($22,007 x .38 x 1/8 x 1/12) while Edward's support obligation for Jamie as calculated above is $121.70. Offsetting these figures, Winona owes Edward monthly support of $80.08 for March and April.

Edward's third point is clearly correct, Jamie was in the sole physical custody of Edward for May.

For May, Edward was the primary custodian of Justin and Jamie. Winona owes him $403.46 for this month (22,007 x .38 x 2/3 x 1/12).

Child Support in 2001 and Prospectively

Initially in 2001 child custody arrangements were to be governed by a child custody agreement that the parties entered into in November 2000. Under this agreement Edward had primary physical custody of Justin and Jamie and Winona had primary physical custody of Jarrod. But Justin did not live with Edward during 2001; instead, he resided with third parties. The decree of divorce entered on March 1, 2001, incorporated the child custody agreement without mentioning that Justin was no longer residing with Edward. Though the order determining child support of May 2001 recognized that Justin was residing with third parties, it nevertheless calculated child support as if he was residing half the time with each parent. For 2001 and prospectively Edward was ordered to pay Winona $5386.25 per month for child support. For the reasons that follow we conclude that under Civil Rule 90.3 he should have been ordered to pay a monthly sum of $164.28.

Edward makes three challenges to the 2001 child support.

1. He contends that the trial court should have used his projected 2001 income rather than his actual 2000 income.

2. He contends that the court erred in using the divided custody formula set out in Civil Rule 90.3(b)(6) prior to April 15, 2001, which was the effective date of that subsection.

3. He contends that the court erred in calculating support for Justin as if custody for Justin was a 50/50 shared arrangement.

Edward's first argument lacks merit. Determination of adjusted annual income for child support purposes is a question of fact reviewed under a clearly erroneous standard. On numerous occasions we have upheld determinations based on past income in preference to more speculative evidence. The trial court did not err in this case in adopting this approach.

Edward's second point is likewise without merit. Even though the divided custody rule reflected in Civil Rule 90.3(b)(6) had an effective date of April 15, 2001, the formula on which the rule is based was earlier approved in Bunn v. House. It was not error to use the Bunn v. House formula prior to the effective date of its codification.

Edward's third point has two parts. First he argues that because under the November 2000 agreement he was the primary physical custodian of Justin, Winona should have been paying him child support for Justin even though Justin was not actually living with him in 2001. We reject this argument under the authority of Bennett v. Bennett. Edward in this case is positioned like the father in Bennett who had de jure but not de facto custody of the parties' child. Here, as in Bennett, there was no pre-existing child support award. We held in Bennett that the father under these cireumstances was not entitled to child support from the mother, stating: "Awarding child support to a parent who has relinquished de facto custody and no longer provides any financial support to the child does not further the purposes of the child support rule."

The second aspect of Edward's third point is that the trial court ignored Civil Rule 90.3(N)(2) when it calculated child support as if Justin was in a shared custody status. This is well taken. The court should have calculated child support considering Justin to be in third-party custody under Civil Rule 90.3(N0)(2). As we have already noted, this subsection directs the court to calculate the support obligation between the parents without considering the children in the custody of third parties, adjusting applicable percentages "pro rata for the number of children in the primary custody of a parent ... compared to the total number of children ."

Following Civil Rule 90.38(i)(2) and adopting the divided custody formula of Bunn v. House used by the trial court and now reflected in Civil Rule 90.8(b)(6) yields monthly support of $164.28 that Edward owes Wi-nona.

Other Points on Appeal

Edward makes an argument relating to the penultimate paragraph of the May 29, 2001 child support order, which states: "Third parties supporting the minor children during any of the above periods have a cause of action in debt against the obligor parent for the care of the minor child." Edward takes issue with the word "obligor," contending that both parties should have a support obligation to the third-party custodians. Implicit in this argument is that in Civil Rule 90.3 "obligor" refers to the parent who must pay the other parent child support. If this was the sense in which the court intended "obligor" to be understood in the paragraph under review this would be error. Under Rule 90.3(i) both parents have a duty to pay support to third-party custodians.

Edward's final argument is that the trial court should have granted an evidentia-ry hearing on the question of child support. Under the cireumstances of this case this argument lacks merit because neither Edward nor Winona requested an evidentiary hearing. Both parties were represented by counsel and nothing indicates that they were misled in any respect concerning how the court would proceed. Therefore Edward waived his right to an evidentiary hearing on disputed material questions of fact by his failure to request one before the court ruled.

Conclusion

For the above reasons the order setting child support is REVERSED IN PART and this case is REMANDED for entry of an order consistent with this opinion.

      . Commentary to Civil Rule 90.3, Section XLB provides:
      There will be instances when a third party is entitled to support for some of the parent's children, but one or both parents retain primary or shared custody of their remaining children. In this case, child support between the parents should be calculated using Rule 90.3 based on the pro rata support percentages for the children not in third party custody. After that calculation, any support owed may be offset with amounts owed under 90.3(i)(1) to minimize transactions.
      For example, a father might have custody of two children and the mother's sister might have custody of, and be entitled to support for, the parents' third child. Both parents in this example have a $45,000 adjusted annual income. Under Rule 90.3(i)(1), the sister is entitled to $4,950 per year from the father [$45,-000 (annual income) x 33% (percentage for three children) x 1/3 (custodian has one of three children)]. The sister also is entitled to the same amount from the mother. (The parents' incomes are the same and the mother supports the children living with the father.) The pro rata percentage for each child under 90.3(a)(2) would be 33% (three children) / 3 or 11% per child. Under 90.3(i)(2), the mother owes the father $9,900 per year in support ($45,000 x 22%). If the support amounts are offset, the mother will owe her sister $9,900 per year and the father $4,950 per year. The court could decide, however, that it was preferable not to offset the support amounts because one of the parents might not pay the third party.

      . The proper method of calculating child support 2. is reviewed de novo. See Charlesworth v. State, Child Support Enforcement Div., 779 P.2d 792, 793 (Alaska 1989).

      . Alaska R. Civ. P. 90.3(N(2) (emphasis added).

      . The calculations are:
      For Edward = 39,708.54 x .33 x 1/3 x 1/12 x .50 = 182.00
      For Winona = 22,007 x .33 x 1/3 x 1/12 x .50 = 100.87
      Subtracting 100.87 from 182.00 = $1.13
      Applying the multiplier of 1.5 x 81.13 = $121.70

      . 910 P.2d 590, 596-97, & n. 13 (Alaska 1996).

      . Id.

      . Gallant v. Gallant, 945 P.2d 795, 800 (Alaska 1997).

      . See, eg., Virgin v. Virgin, 990 P.2d 1040, 1049 (Alaska 1999) (holding court need not credit speculative evidence provided by employer as to future income); Coghill v. Coghill, 836 P.2d 921, 925-26 (Alaska 1992) (favoring twelve-month period of prior year over first quarter figures from present year); Pugil v. Cogar, 811 P.2d 1062, 1067 (Alaska 1991) (upholding a determination of income based on average of past income where parent worked in industry where employment and income were erratic).

      . Of course, appellant may petition for modification if his income does in fact decrease sometime in the future. Virgin, 990 P.2d at 1049.

      . Alaska R. Civ. P. 90.3(b)(6); Commentary to Civil Rule 90.3, Section V.D.

      . 934 P.2d 753, 755-58 (Alaska 1997). See also Commentary to Civil Rule 90.3, Section V.D.

      . 6 P.3d 724, 727-28 (Alaska 2000).

      . Id. at 725-26.

      . Id. at 728 n. 19.

      . Id. at 727-28.

      . Alaska R. Civ. P. 90.30)(2).

      . Determined by calculating Edward's pro rata support obligation for one child ($39,708.54 x .33 x 1/3 x 1/12) = $363.99; Winona's pro rata obligation for one child ($21,787 x .33 x 1/3 x 1/12) = $199.71; and subtracting the smaller from the larger figure ($363.99-$199.71 = $164.28), resulting in $164.28 that Edward must pay Winona.

      . See Alaska R. Civ. P. 90.3(a)(3) and (b)(3).

      . See Commentary to Civil Rule 90.3 XLB (second paragraph).

      . See, e.g., John's Heating Serv. v. Lamb, 46 P.3d 1024, 1036 (Alaska 2002) (failure to request evi-dentiary hearing waives right to one).


author: EASTAUGH, Justice.

text:
    JACK C., Appellant, v. STATE of Alaska, DFYS, Appellee.
    No. S-10690.
    Supreme Court of Alaska.
    May 2, 2003.

      Michael P. Heiser, Ketchikan, for Appellant.
    Stacie L. Kraly, Assistant Attorney General, and Gregg D. Renkes, Attorney General, Juneau, for Appellee.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

EASTAUGH, Justice.

I. INTRODUCTION

Under authority of AS 47.10.088, the superior court terminated Jack C's parental rights to his two young daughters. Jack C. claims on appeal that the court clearly erred in finding that the state proved by clear and convincing evidence that he had failed to remedy, within a reasonable period of time, the conduct that placed his two children at substantial risk, and in finding that returning the children to him would place them at substantial risk of physical or mental injury. The superior court did not clearly err. Essentially undisputed evidence established that Jack C. had sexually abused both children and that he failed to complete individn-alized treatment programs for sexual abuse, substance abuse, and anger management within a reasonable time. We therefore affirm the termination of his parental rights.

II. FACTS AND PROCEEDINGS

Jack C. and Paula R. are the parents of Nina C. and Julie C. Julie was born in March 1993 and Nina was born in March 1995. During Jack and Paula's "off and on" relationship, the couple regularly abused aleohol and drugs and Jack engaged in domestic violence against Paula. Their relationship ended in 1998. Jack, Julie, and Nina moved to Alaska in January 1999.

In December 1999 Nina, then age four, complained to her live-in babysitter, Kelly V., that her "butt hurt." When Kelly asked her why she was in pain, Nina responded that her Dad "puts his wiener in my mouth, pees in my mouth, and sticks his wiener in my private parts." Kelly reported Nina's complaints to the Alaska Department of Health and Social Services, Division of Family and Youth Services (DFYS). Kelly also reported that Jack used drugs and that he called the girls names. She also recalled an incident in which Jack arrived at her home, drunk, with both girls in the car. On the same day Kelly reported the abuse, Sue Patrick, a DFYS social worker, interviewed the two children, who confirmed Kelly's report. Nina also told the social worker that her father had hit her.

DFYS immediately took emergency custody of Nina and Julie. DFYS petitioned the superior court the next day for an adjudication that Nina and Julie were children in need of aid and for an order committing the children to DFYS custody. After conducting a hearing on the state's petition, Superior Court Judge Thomas M. Jahnke held that there was probable cause to believe that the children were in need of aid under AS 47.10.011(1), (6), (7), (9), and (10), and that it would not be in the children's best interests to be placed back in Jack C.'s home. The superior court committed the children to the temporary custody of DFYS and also ordered both parents to participate "in the development of a case plan and ... family support services as set forth in that case plan." The court forbade the parents to have direct or indirect contact with the children unless they arranged visitation through DFYS.

Paula's DFYS case plan required that she maintain regular contact with the children, complete a residential substance abuse and alcohol program, follow through with all treatment recommendations, and stay clean and sober for six months. DFYS planned to conduct a home study for Paula to determine whether it should place the two girls with her, Jack's DFYS case plan required that "he be evaluated for individualized programs for substance abuse/aleohol treatment, anger management, parentingl,] ... and sex offender treatment (SOTP), and that he complete the recommended programs."

In an amended petition for an adjudication that Julie and Nina were children in need of aid, DFYS also alleged that Julie had disclosed that her father "choked her once when he was drunk and she could not breathe."

In February 2000 an indictment charged Jack with two counts of sexual abuse of a minor in the first degree under AS 1141,434(a)(2)(A) for sexual penetration of Nina.

The March 2000 report of guardian ad litem (GAL) Patricia Muzzana reported that she had observed that both girls had engaged in "sexual acting out" and were "knowledgeable beyond their years in sexual matters." The GAL recommended that the children "remain in the custody of the Department of Health and Social Services for at least six months or until a relative placement can be determined and approved."

Judge Jahnke conducted the adjudication hearing in March 2000, and per the parties' stipulation ordered that the children remain in DFYS custody for six more months while DFYS conducted home studies of the children's relatives. Jack requested that either his mother, Mary C., or his sister, Pilar C., have custody of the girls. Paula's eldest daughter, Billi R., wanted the girls placed with her. The court again ordered Jack and Paula to participate in the family support services recommended by DFYS and to work with the division to update their case plans.

In August 2000 DFYS filed another petition to extend its custody of the children up to one year. A report DFYS submitted in support indicated that Jack had not completed his sex offender treatment program and was "not willing to talk to any mental health professionals about any subject until his criminal case [was] resolved." The report also indicated that Jack was not working on his alcohol and drug problem with "any particular focus."

DFYS's report also described a July 2000 incident between Jack and his daughters. Jack had approached them while they were on a day-care field trip. He hugged the two girls and told them that he loved them. This unsupervised contact was a direct violation of the superior court's order that Jack not have direct or indirect contact with the children unless it was arranged with DFYS. Because of the incident, Julie became "hysterical" and Nina "was able to voice her fear that he was coming back." Superior Court Judge Trevor N. Stephens extended DFYS's custody of the two girls for one year.

In November 2000, eleven months after taking emergency custody of the girls, DFYS filed a report recommending that Julie and Nina remain in long-term foster care permanently. DFYS reported that it had determined that the girls' mother, Paula, was not a proper placement due to drug and alcohol abuse and that Jack's mother and his sister were not proper placements either. DFYS had not yet completed a home study for Paula's eldest daughter, Billi R. DFYS also reported that Jack and Paula had not complied with the requirements of their respective case plans. The report concluded that Jack had been "minimally compliant" with respect to his participation in the parenting classes and alcohol and drug program. He also had not completed sex offender treatment because he "refuse[d] to address any issues related to the allegations of sexual or physical abuse due to his pending criminal trial." Paula had not had any contact with her children in over three months and had not sought admission to a residential drug and alcohol treatment program.

A week later, DFYS filed a second amended child-in-need-of-aid petition informing the court that Julie had disclosed that Jack had sexually abused her and that Jack had been charged by indictment in October 2000 with sexual abuse of a minor in the first degree for sexual penetration of Julie in 1999. |

In May 2001 Jack pleaded guilty to a reduced charge of one count of sexual abuse of a minor in the second degree. Superior Court Judge Michael A. Thompson sentenced Jack to six years in prison, with two years suspended, for a total of four years of incarceration. Judge Thompson recommended that Jack "be classified in a sex offender program" during incarceration at Meadow Creek Correctional Center. Judge Thompson also placed Jack on ten years probation following his release, during which he was to have "no contact, direct or indirect" with his daughters or any other females under the age of sixteen "without the prior written permission of the sex offender treatment provider and the probation officer." As a condition of probation, Judge Thompson also ordered that Jack participate in any sex offender treatment programs that the Department of Corrections or a probation officer might require.

Jack appealed his sentence to the Alaska Court of Appeals. He argued that the trial court erred in not postponing the sentencing hearing to allow him to complete a sex offender evaluation and also that his four-year prison sentence and ten-year probation period were excessive.

After Jack was sentenced, DFYS filed a second report for a permanency hearing in June 2001 recommending that the superior court terminate Jack and Paula's parental rights and that Julie and Nina be adopted by extended family. DFYS concluded that Jack had failed to avail himself of parenting programs or sex offender treatment programs before his incarceration. Paula had not had contact with the girls since September 2000 and still had not sought treatment for her drug and alcohol abuse.

Jack began serving his sentence in June 2001. He entered a sex offender treatment program at the Meadow Creek Correctional Center on September 4, 2001. He admitted to a history of drug addiction, sexual promiscuity, and violent behavior. He also admitted to sexually abusing both daughters.

The sex offender treatment team at Meadow Creek estimated that Jack needed at least twenty-nine months to complete an individual treatment plan. The team also recommended that he focus on his anger management, parenting, and substance abuse issues. The team reported that Jack had also been involved in a number of incidents involving "anger and crossing the boundaries of others" while participating in the treatment program.

DFYS filed a petition in November 2001 to terminate parental rights of both parents. DFYS argued that because Jack had sexually and physically abused his daughters and had failed to fulfill the requirements of his case plan, the superior court should terminate his parental rights. DFYS also pointed out that because Jack's four-year prison sentence and ten-year probation period forbade him from having any contact with his daughters or any female under the age of sixteen without prior written permission from a sex offender treatment program officer or parole officer, he would not be able "to parent these children at any time during their minority."

In January 2002 Jack was transferred to the Lemon Creek Correctional Center. He was released on bail in February 2002 pending his sentence appeal. The treatment team at Meadow Creek disagreed with his release.

The treatment team removed Jack from the sex offender treatment plan at Meadow Creek in March 2002 for "non-compliance with his Individual Treatment Plan." The treatment team observed that "hle was not honest with group, staff, or Treatment Team ... lacked commitment ... [and was] more focused on many issues outside of the Program."

In its discharge summary, the treatment team identified several risk factors that contributed to Jack's sexually abusive behavior and recommended corresponding corrective treatment to reduce the likelihood of future sexual abuse by Jack. These risk factors included: Jack's "one-sided mindset," which caused him to seek "that which would satisfy himself" and meant that he was "lacking psychological insight ... and empathy for others"; his substance abuse, sexual promiscuity, theft, and drug-dealing; his conflicts with the children's mother, Paula; and his unsupervised access to his minor daughters.

Jack's total criminality score on the Hare PCL-R scale classified him as psychopathic. The treatment team also found that he posed a "high" recidivism risk for sexual assault under the Hanson/Harris rating. He was also diagnosed under DSM IV as having polysubstance dependence and antisocial personality disorder. The team classified Jack as a "Level III" offender, an individual with "a higher risk to reoffend as an untreated sex offender." As a Level III offender, he was ineligible "for vietim contact and/or family reunification where a former or potential victim is in residence."

The court of appeals ultimately denied Jack's appeal and affirmed the superior court's sentence and probation period. The court concluded that "[gliven the seriousness of [Jack's] conduct and [his] apparent unwillingness or inability to directly acknowledge that he sexually abused his daughters, Judge Thompson was justified in ... [choosing] a 10-year term of probation so that [Jack] would be under Department of Corrections supervision until his children were significantly older."

A hearing on DFYS's petition to terminate Jack and Paula's parental rights commenced in May 2002. Paula did not attend. Jack requested that the court continue the hearing so that he could obtain a sex offender treatment evaluation. The court agreed to bifurcate the hearing, permitting the state to present its evidence on the scheduled trial date and allowing Jack to present his evidence in June 2002. Lori Hudson, a DFYS social worker, testified in May and on rebuttal in June that although Jack completed general programs designed for the general public, he had not completed the recommended individual treatment programs which the case plan required. Jack testified in June that he had completed the programs specified in his case plan. He testified that he had completed parenting and anger management programs and received an alcohol/substance abuse evaluation. He also admitted that he had sexually abused both children.

Judge Stephens held that the division had proved by clear and convincing evidence that Julie and Nina were children in need of aid under AS 47.10.011(1), (6), (7), and (10) and that it would not be in the children's best interests to return them to Jack's custody because he "is an untreated sex offender at a high risk to reoffend." The superior court further held that the children should not be in Jack's custody because he had "failed to remedy the conduct ... that placed [his daughters] in substantial risk of harm" by not completing the individualized anger management, parenting, and aleohol/substance abuse programs required by his case plan. The court noted that Jack did not complete a sexual offender treatment program, and that the SOTP requirement was the most important of the programs Jack's case plan required. The court also held that DFYS had proved by a preponderance of the evidence that it had made reasonable efforts to allow the children to return to Jack or Paula. The court therefore terminated Jack and Paula's parental rights and responsibilities under AS 47.10.088. Judge Stephens then committed both children to Department of Health and Social Services custody for adoptive purposes under AS 47.10.080(d).

Jack appeals the termination of his parental rights. His main argument is that it was clear error to find that he had failed to remedy within a reasonable period of time the conduct that placed the children at risk.

III. DISCUSSION

A. Standard of Review

We apply the clearly erroneous standard when reviewing the superior court's factual findings. "[Cllear error arises only when our review of the entire record leaves us with a definite and firm conviction that the superior court made a mistake." We review de novo whether a superior court's factual findings satisfy the applicable CINA rules and statutes.

B. The Trial Court Did Not Err in Holding that DFYS Proved by Clear and Convincing Evidence that Jack Failed Within a Reasonable Period of Time To Remedy the Conditions that Placed His Children at Substantial Risk of Harm.

Under AS 47.10.088(a)(1)(B), a court may terminate parental rights to a child if the court finds by clear and convincing evidence per AS 47.10.011 that the child is a child in need of aid 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
() 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.[]

Jack does not challenge the finding that his children are in need of aid under AS 47.10.011(1), (6), (7), or (10). Rather, he challenges the trial court's finding . that DFYS proved by clear and convincing evidence under AS 47.10.088 that he had failed to remedy, within a reasonable time, the conduct or conditions that placed his daughters at substantial risk of harm. Jack argues that because he has made "substantial efforts" to remedy his behavior and deserves additional time to complete his case plan, it was improper to terminate his parental rights.

Jack's arguments are unpersuasive. There is no legitimate dispute about the facts discussed in Part II above. The record demonstrates that Jack has not completed the sex offender treatment program (SOTP) pre-seribed by his DFYS case plan. While incarcerated, he participated in a SOTP for only four months before he was released on bail to appeal his criminal sentence and then was discharged from the program. The SOTP treatment team determined that Jack needed at least twenty-nine months to complete his individual treatment program. Having participated in only four of the recommended twenty-nine months of treatment, Jack remains essentially untreated. Jack testified at his termination trial that Dr. Tony Man-der, his own expert, had recommended that Jack participate in a SOTP. Because Jack must still participate in about two more years of treatment, he cannot complete the remainder of the required SOTP within a reasonable time.

Jack has had sufficient time to complete or substantially complete a sex offender treatment program. DFYS developed Jack's case plan in early 2000, soon after DFYS took emergency custody of his children in December 1999. Before incarceration, Jack did not seek sexual offender treatment offered by DFYS. Nor did he avail himself of any of the services DFYS offered him before he went to jail, because he was unwilling to discuss the details of the sexual abuse of his daughters while his criminal case was pending. Assuming there is a tension between one's constitutional right not to incriminate oneself and one's rights as a parent, time was nevertheless passing in the lives of Jack's young children. At the conclusion of the termination trial in June 2002, Jack's children had already been in DFYS custody for nearly two and a half years. Jack has not consistently demonstrated any initiative to remedy the behavior that placed his daughters at a substantial risk of harm. Because of the children's young age, it is especially important that they be placed in permanent homes expeditiously. As DFYS persuasively argues, the children "should not be denied permanency while they wait for their father to work on his case plan."

There is no doubt that Jack's propensities place his children at risk of substantial harm. As an untreated sex offender who was assessed as having a "high" risk of recidivism, Jack poses a significant and particularized threat of further sexual abuse. Further, the consequences of the threat he poses are grave; his children have already been severely traumatized by his conduct. Even after the children were removed from Jack's custody, they were significantly traumatized by a brief encounter with him in a public setting. Subsequent abuse would be even more traumatizing.

The record also egtablishes that Jack did not complete the individualized anger management, parenting, or substance abuse treatment programs his case plan required. Although Jack completed general anger management and parenting programs, and received a substance abuse evaluation, he did not follow through with any of the programs' individual recommendations for treatment. The superior court did not clearly err in finding that DFYS proved by clear and convincing evidence that Jack had failed to remedy the conduct that placed the children in substantial risk of harm. Nor did it clearly err in finding that returning them to his custody would place them at substantial risk of physical or mental injury.

Jack also argues that AS 47.10.080(0) applies to this case. That statute permits a court to determine that a parent's incarceration is a legitimate ground for terminating parental rights under some cireumstances. Jack argues that there is no clear and convincing evidence under AS 47.10.080(0)(8) that he failed to make adequate provisions for his children's care while he was incarcerated. -It is irrelevant here that Jack allegedly made adequate provision for the children's care during his incarceration. Alaska Statute 47.10.080(0) only applies when the trial court terminates parental rights under AS 47.10.080(0)(8). Jack's rights were terminated under AS 47.10.088, not AS 47.10.080(c).

Jack briefly asserts in the conclusion of his opening brief that the trial court "also erred in finding that DFYS made reasonable efforts to permit [Nina] and [Julie] to return to the custody of their father." But this assertion is unsupported, and the next few sentences in his brief argue a different issue: that Jack made "substantial efforts" to remedy his conduct and made "substantial progress" in his treatment. As seen above, the trial court rejected those contentions, and the record clearly establishes that Jack did not complete the individualized treatment that he needs. This argument is consequently without merit.

IV. CONCLUSION

We AFFIRM the termination of Jack C.'s parental rights.

      . This opinion uses pseudonyms for all family members.

      . Jack and Paula were both incarcerated in 1998. During the parents' incarceration, the children lived with Jack's mother. The State of Washington filed a petition against both parents for child support on behalf of Julie. The court entered judgment against Jack and Paula for child support for Julie and awarded Jack custody of Julie. No mention was made of custody or child support for Nina. Paula was still incarcerated when Jack brought the girls to Alaska.

      . DFYS had investigated two previous reports of abuse and neglect for Jack C.'s family, but those reports were not confirmed.

      . This case was reassigned to Judge Stephens after Judge Jahnke retired.

      . When Julie was interviewed by investigators, she stated that her father put his hand inside her panties and touched her genitals Julie stated that she took her father's hand away and told him, "Stop, Dad. I mean it." Julie refused her father's request to touch his genitals. Julie added that her father told her, "Don't tell ..., or I'll get in trouble."

      . AS 47.10.011 provides in part:
      [The court may find a child to be a child in need of aid if it finds by a preponderance of

        the evidence that the child has been subjected to any of the following:
      (1) a parent or guardian abandoned the child as described in AS 47.10.013, and the other parent is absent or has committed conduct or created conditions that cause the child to be a child in need of aid under this chapter;

      (6) the child has suffered substantial physical harm ... as a result of conduct by or conditions created by the child's parent [or] guardian ...;
      (7) the child has suffered sexual abuse, ... as a result of conduct by or conditions created by the child's parent [or] guardian ...;

      (10) the parent, guardian, or custodian's ability to parent has been substantially impaired by the addictive or habitual use of an intoxicant, and the addictive or habitual use of the intoxicant has resulted in a substantial risk of harm to the child ....

      . See M.W. v. State, Dep't of Health & Soc. Servs., 20 P.3d 1141, 1143 (Alaska 2001).

      . Id.

      . Id.

      . AS 47.10.088(a)(1)(B); see also AS 47.10.088(b). AS 47.10.088(b) provides in part:
      In making a determination under [AS 47.10.088(a)(1)(B)], the court may consider any fact relating to the best interests of the child, including
      (1) the likelihood of returning the child to the parent within a reasonable time based on the child's age or needs;
      (2) the amount of effort by the parent to remedy the conduct or the conditions in the home;
      (3) the harm caused to the child;
      (4) the likelihood that the harmful conduct will continue; and
      (5) the history of conduct by or conditions created by the parent.

      . See AS 47.05.065(5). AS 47.05.065 provides in part:
      The legislature finds that

      (5) numerous studies establish that
      (A) children undergo a critical attachment process before the time they reach six years of age;

      (C) it is important to provide for an expedited placement procedure to ensure that all children, especially those under the age of six years, who have been removed from their homes are placed in permanent homes expeditiously.

      . AS 47.10.080(0) provides that:
      For purposes of terminating a parent's parental rights under the standards in (c)(3) of this section, the court may determine that incarceration of the parent is sufficient grounds for determining that a child is a child in need of aid under AS 47.10.011 as a result of parental conduct and that the parental rights of the incarcerated parent should be terminated if the court finds, based on clear and convincing evidence, that
      (1) the period of incarceration that the parent is scheduled to serve during the child's minority is significant considering the child's age and the child's need for an adult's care and supervision;
      (2) there is not another parent willing and able to care for the child; and
      (3) the incarcerated parent has failed to make adequate provisions for care of the child during the period of incarceration that will be during the child's minority.