Yelena R. v. George R. ( 2014 )

Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
YELENA R., )
) Supreme Court No. S-15042
Appellant, )
) Superior Court No. 3KO-11-00300 CI
v. )
) OPINION
GEORGE R., )
) No. 6912 – May 23, 2014
Appellee. )
_______________________________ )
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Kodiak, Steve W. Cole, Judge.
Appearances: Yelena R., pro se, Taunton, Massachusetts,
Appellant. Elizabeth W. Fleming, Kodiak, for Appellee.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and
Bolger, Justices.
STOWERS, Justice.
I. INTRODUCTION
Yelena R. and George R.1 were involved in an on-again, off-again
relationship for more than a decade and have two children together. Yelena accused
George of sexually assaulting her in May 2011 while they were living together in
1
We use pseudonyms throughout this opinion to protect the privacy of
family members.
Kodiak. After the Kodiak magistrate found Yelena’s testimony unpersuasive and denied
her request for a long-term domestic violence protective order, Yelena took the children
to Massachusetts without notifying George. A Massachusetts court ordered the children
to be returned to Kodiak and this custody case ensued. After a custody trial, the superior
court granted sole legal and primary physical custody of the children to George and
ordered supervised visitation between Yelena and the children. Yelena now appeals the
custody order and visitation restrictions.
This appeal requires us to consider whether the superior court had
jurisdiction to make final custody decisions regarding the children, and, if it did, whether
the superior court properly: (1) declined to find a history of domestic violence by
George; (2) awarded custody to George; and (3) required supervised visitation. We
conclude that the superior court had jurisdiction, properly declined to apply
AS 25.24.150(g)’s domestic violence presumption, adequately considered
AS 25.24.150(c)’s “best interest” factors, and made no clearly erroneous factual findings;
thus it did not abuse its discretion by awarding custody of the children to George. It was
error for the superior court to require supervised visitation without making adequate
findings to support the visitation restrictions and by failing to establish a plan for Yelena
to achieve unsupervised visitation. It was also an abuse of discretion to delegate to
George the authority to end the supervision requirement. We affirm the superior court’s
award of custody to George, but remand for further proceedings on the issue of Yelena’s
visitation.
II. FACTS AND PROCEEDINGS
A. Facts
Yelena and George married in October 2000 after Yelena became pregnant.
George and Yelena’s son, Isaac, was born in January 2001. George joined the Coast
Guard in late 2000, and the family moved to California shortly after Isaac was born.
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Yelena testified that about five months after they were married, a pattern
of reciprocal physical abuse began between her and George.2 Yelena said that both of
them committed acts of domestic violence and were arrested early in their relationship.
Yelena was arrested and charged with inflicting corporal injury on a spouse and battery
on a spouse in September 2001 in California.3 She entered a nolo contendere plea and
was sentenced to ten days in jail and one year of probation.
George filed for divorce in 2002, and the couple divorced in November
2004 in California. The California court ordered shared legal custody of Isaac and
granted primary physical custody to George, with regular visitation to Yelena. The court
also granted George’s request to move with Isaac from California to North Carolina for
work. Despite their divorce, Yelena and George continued their relationship and lived
together on and off between 2004 and 2011.
Yelena became pregnant with their daughter Amy in 2005. Yelena alleged
that George pushed her down the stairs because he did not want her to have the baby.
Amy was born in early 2006. George was then stationed in Massachusetts, and George
and Yelena moved back in together and lived with George’s mother. Yelena suggested
that George’s family abused Yelena and Isaac during this time.
In July 2007 while they were living in Massachusetts, Yelena reported that
after she found earrings in their bed and placed them in George’s hand, he assaulted her
by repeatedly punching her in the back while Amy lay in the bed next to her. George
told police that he and Yelena had been arguing for several days and that she dropped
Amy on him while he was sleeping and then assaulted him by sitting on him, hitting him,
2
Most of the testimony that we reference in this opinion was given late in the
case, during an evidentiary hearing on interim custody in May 2012, or at the custody
trial conducted over several days in June, August, and September 2012.
3
There are no factual details concerning these charges in the record.
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and swinging an object at him. George was arrested and charged with assaulting Yelena.
Yelena went to Cape Cod Hospital in Hyannis later that day, where she reported being
punched in the back. She was diagnosed as having a subcapsular hematoma on the left
kidney. Yelena voluntarily left the hospital against medical advice.
Yelena moved back in with George three or four months after the alleged
assault, around November 2007. On November 8 George was counseled in writing by
his Coast Guard commanding officer to reconsider living with Yelena because of the
multiple reported altercations between them. George was also counseled that he should
not be living with Yelena because she admitted to being “a habitual user of marijuana.”
In April 2008 the trial court in Barnstable, Massachusetts entered a
stipulated order in which Yelena and George agreed to share legal and physical custody
of the children. In May 2008 a Barnstable district court judge dismissed the assault
charges against George arising from the July 2007 incident.
From early 2008 until 2010, Yelena and George did not live together but
did spend significant time together. During that time George took care of the children
most weekends and evenings. George testified that Yelena would not spend her time off
with the children, suggesting that she would instead “socialize” and often had a
“hangover.”
In June 2010, the Coast Guard transferred George to Kodiak. Yelena said
that their relationship and co-parenting were good in the period leading up to when
George moved. Yelena quit her job around October and in early December moved to
Kodiak with the children to live with George. Yelena obtained employment as a victim’s
advocate at the Kodiak Women’s Resource and Crisis Center.
Isaac developed severe dental problems sometime before the move to
Kodiak. George claimed that these problems were the result of Yelena’s neglect, and
that he immediately dealt with them when Isaac arrived in Kodiak. George said that he
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first learned about the dental issues shortly before Yelena moved to Kodiak, and that he
told her Isaac should have been seen by a dentist before moving. George explained that
he immediately took Isaac to the dentist and a series of visits occurred before Isaac was
referred to specialists in Anchorage. In April 2011 pediatric dentists at Joint Base
Elmendorf-Richardson diagnosed Isaac as having a “cystic lesion that was grossly
disfiguring and causing dental and maxillofacial deformity.” The lesion was removed
in June 2011. The chief of pediatric dentistry stated that “prompt recognition . . . could
have significantly lessened the facial deformity and subsequent need for future
orthodontic treatment.”
Yelena testified that on the morning of May 25, 2011, George came home
from work and began kissing her and making sexual advances.4 She refused, stating
“[t]his isn’t worth it . . . I’m sleeping with someone else.” She further told George “no,”
“stop,” and “please don’t,” but he continued to sexually assault her. The sexual assault
continued for about five minutes and Isaac, then ten years old, came to the bedroom door
after the incident and asked if she was “OK.”
Isaac, who was 11 at the time of his testimony, testified that he had
difficulty remembering specific events from around the time of the alleged sexual assault,
but he did recall a specific instance where his father asked him if he wanted to call the
police. He heard his mother and father watching television in their room and then heard
his mother yelling “stop, stop,” and he said she sounded “furious.” He stated that he was
scared because he thought someone else might have been in the room with his parents.
4
Most of the testimony about the alleged sexual assault was given at a Coast
Guard hearing on court-martial charges against George. The superior court admitted the
hearing report in full as evidence. No objection was made to the admission of this report,
and neither party argues on appeal that the report should not have been considered by the
superior court.
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When his mother came out of the room she asked him if he was “OK” and he asked her
if she was “OK.”
Yelena reported the assault to her supervisor at work the next morning. Her
supervisor, Rebecca Shields, testified that Yelena did report the incident to her, though
she was unable to recall exactly when. Shields stated that she counseled Yelena and
advised her of her options.
Yelena applied for an ex parte, short-term domestic violence restraining
order on May 25, which the Kodiak magistrate granted. After receiving the temporary
restraining order, Yelena did not immediately return to George’s home, but instead
stayed in a hotel, sometimes accompanied by Charles Wimberly, whom she had been
dating. As a result of the temporary restraining order, George was required to vacate his
home, which he did. George later stated that during the time the restraining order was
in place Yelena was partying and allowing people to stay in his home.
Wimberly testified that Yelena told him about the temporary restraining
order obtained against George and that she was scared of George, but he stated that she
never told him about the sexual abuse. Paula Bracher, a friend of Yelena’s, testified that
Yelena told her about the alleged assault several weeks after the incident, but Bracher
never observed any abuse or apparent signs of abuse between Yelena and George.
One of George’s co-workers and friends, Robert Greenidge, stated that he
observed George to be a great father, but had seen Yelena out at bars in town regularly.
He stated that in May 2011 he once observed Yelena “blow her top” and “smack”
George while a group of people were watching a sporting event. Greenidge also testified
that George said Yelena had sexually assaulted him in the past.
In an interview with a Coast Guard investigator, George denied Yelena’s
allegation that he sexually assaulted her. He stated that Yelena assaulted him in the 2007
incident and that his acts in self-defense may have caused some injuries, but he asserted
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that her medical reports were not accurate. George also told the investigator that on three
occasions Yelena woke him up by performing nonconsensual oral sex on him.
On June 14, 2011, the Kodiak magistrate denied Yelena’s motion for a
long-term protective order and dissolved the temporary order. Immediately after the
court denied Yelena’s request for a long-term protective order, she took the children and
went to Massachusetts without notifying George. On June 15 Yelena sent George an
email informing him that she had left with the children. She did not disclose her
location, but she left a telephone number. In the email, Yelena accused George of being
mentally and physically abusive throughout their relationship.
In mid-July 2011 Yelena reported the previous May’s alleged sexual assault
to the Coast Guard in Boston. The Coast Guard initiated an investigation into the sexual
assault allegations that fall. On October 6 the Coast Guard issued a Military Protective
Order prohibiting George from contacting Yelena, Isaac, or Amy. The Coast Guard held
a probable cause hearing on court-martial charges against George on April 26, 2012.
The investigating officer found reasonable grounds to believe that George committed the
alleged sexual assault. Although the officer recommended that the charges be forwarded
to general court-martial, the Coast Guard ultimately dismissed the charges against
George on July 10, 2012.
B. Proceedings
Yelena submitted an affidavit to the Taunton, Massachusetts district court
on June 22, 2011, stating that she fled with the children because she was not granted a
permanent restraining order in Kodiak and was afraid of George. On June 23 the
Taunton district court issued a temporary “Abuse Prevention Order” against George.
Following a hearing, the court issued a permanent restraining order against George and
granted Yelena sole custody of the children.
In Kodiak superior court, George sought to register orders issued in
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California in 2004 and in Massachusetts in 2008 that gave him shared custody of the
children. Yelena opposed on the basis that the Massachusetts restraining order gave her
sole custody. In August 2011 the Kodiak superior court set a hearing for September 30.
On September 27 the superior court granted George’s request to continue and reset the
hearing for January 13, 2012. George also requested that the court modify the orders to
grant sole legal and physical custody to him. The court indicated that it would not decide
custody modification at the January 13 hearing, but would entertain a request for a
custody modification trial after considering George’s motion to register the 2004 and
2008 out-of-state custody orders.
On October 11 George submitted a motion and affidavit to the Taunton
district court requesting that the court vacate the restraining order against him. He
alleged that Yelena’s request for a permanent restraining order in Alaska was denied
because of credible testimony that Yelena, not he, was violent and a risk to the children.
He further alleged that Yelena kidnapped the children and stole belongings from his
home. His motion and a subsequent motion to reconsider were denied.
On November 1, 2011, George filed a custody modification complaint in
the Barnstable, Massachusetts trial court. The court found that Alaska had “home state”
jurisdiction because the children had lived in Alaska for six months before they were
taken to Massachusetts. The court also found that George’s “testimony at [the] hearing
was far more credible than [Yelena’s].” The court entered an emergency order vacating
the Taunton district court’s July 7 restraining order, granting temporary custody to
George, and directing Yelena to return to Alaska with the children.
On January 13, 2012, the Kodiak superior court confirmed the validity of
the November 2011 Massachusetts custody order and granted temporary custody to
George. On April 12 the Kodiak superior court issued an order denying Yelena’s motion
for expedited consideration and granting continued temporary custody to George until
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an interim custody hearing could be held in May. On May 2 George moved to
reschedule the interim custody hearing scheduled for May 10 because the Coast Guard
investigation would not be completed at that time. The court denied the motion and held
the interim custody hearing on May 10. At that hearing, the court granted continued
temporary custody to George and scheduled a custody trial.
The superior court held a custody trial beginning on June 19, 2012. Yelena
was scheduled to have visitation with the children that day, and the court held a visitation
hearing because Isaac was unwilling to visit with Yelena. Isaac was extremely upset
when he was told that he would be visiting with his mother that day. The court ordered
that visitation occur, but stated Isaac could leave if necessary. The trial continued on
August 2, August 29, and September 20, 2012.
On January 24, 2013, the superior court issued a final order and judgment
granting primary physical and sole legal custody to George and ordering supervised
visitation with Yelena. The superior court found that Alaska had jurisdiction over the
parties and the children under the Uniform Child Custody and Jurisdiction Enforcement
Act (UCCJEA).5 The court explained that it based its custody decision on consideration
of the best interest factors as required by AS 25.24.150(c). Because the children would
be living with George in Alaska and Yelena lived in Massachusetts, the court ordered
telephone or internet visitation to occur twice weekly between Amy and Yelena, and
ordered George and Yelena to arrange supervised in-person visitation. The court stated
that visitation could begin with Isaac when his counselor said he was ready. The court
ordered in-person visitation to be supervised until George reasonably believed
supervision was no longer necessary. The court expressed that it would be ideal if the
children could eventually spend the majority of the summer with Yelena; it also implied
5
Codified as AS 25.30.300-390.
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that shared physical custody was denied because the parties lived far apart. Yelena
appeals.
III. STANDARD OF REVIEW
“Trial courts have broad discretion in determining whether a proposed
child-custody modification is in the child’s best interest.”6 We will not reverse a custody
decision unless the superior “court has abused its discretion or the controlling factual
findings are clearly erroneous.”7 Abuse of discretion in child custody cases occurs when
the superior court “considers improper factors in determining custody, fails to consider
statutorily mandated factors, or assigns disproportionate weight to certain factors while
ignoring others.”8 A factual finding is clearly erroneous if, after reviewing the record,
we are left “with the definite impression that a mistake has been made.”9
We review visitation orders for abuse of discretion.10 “Whether the
superior court applied the correct legal standard is a question of law that we review
de novo, adopting the rule of law that is most persuasive in light of precedent, reason[,]
and policy.”11 We review challenges to jurisdiction de novo.12
6
Heather W. v. Rudy R., 274 P.3d 478, 481 (Alaska 2012) (quoting Rego v.
Rego, 259 P.3d 447, 452 (Alaska 2011)) (internal quotation marks omitted).
7
Iverson v. Griffith, 180 P.3d 943, 945 (Alaska 2008) (citing Fardig v.
Fardig, 56 P.3d 9, 11 (Alaska 2002)).
8
Id.
9
Osterkamp v. Stiles, 235 P.3d 178, 183 (Alaska 2010) (citing In re Adoption
of Missy M., 133 P.3d 645, 648 (Alaska 2006)).
10
Faro v. Faro, 579 P.2d 1377, 1379 (Alaska 1978) (citing Curgus v. Curgus,
514 P.2d 647, 649 (Alaska 1973)).
11
Rego, 259 P.3d at 452 (quoting McQuade v. McQuade, 901 P.2d 421, 423
(continued...)
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IV. DISCUSSION
A. The Superior Court Had Jurisdiction Under The UCCJEA.
Yelena argues that the superior court erred by allowing “forum shopping.”
She alleges that the Barnstable, Massachusetts court erred by issuing a temporary
custody order and vacating the Taunton, Massachusetts court’s permanent restraining
order against George, which granted custody of the children to her. Her argument
implies that the Kodiak superior court lacked jurisdiction and thus improperly enforced
the Barnstable, Massachusetts court’s order.
Both Alaska and Massachusetts have adopted the initial jurisdiction
requirements of the UCCJEA,13 under which a court has jurisdiction to make a child
custody determination if the “state was the home state of the child within six months
before the commencement of the proceeding and the child is absent from [the] state but
a parent or person acting as a parent continues to live in [the] state.”14 “A child’s home
state is the state where the child has lived with his parent or person acting as a parent for
six consecutive months immediately before the commencement of the proceeding.”15
The Alaska court, not the Massachusetts courts, had home state jurisdiction
in this case. The children lived in Alaska from December 14, 2010 until June 14, 2011,
11
(...continued)
n.3 (Alaska 1995)) (internal quotation marks omitted).
12
Atkins v. Vigil, 59 P.3d 255, 256-57 (Alaska 2002).
13
See AS 25.30.300; M ASS . G EN . LAWS ch. 209B § 2 (not expressly adopting
UCCJEA, but using functionally identical language); U NIF . CHILD CUSTODY
JURISDICTION & ENFORCEMENT A CT § 201 (1997).
14
AS 25.30.300(a)(2); see also U NIF . CHILD CUSTODY JURISDICTION &
ENFORCEMENT A CT § 201(a)(1); M ASS . G EN . LAWS ch. 209B § 2(a)(1).
15
Atkins, 59 P.3d at 257 (citing 28 U.S.C. § 1738A(b)(4)).
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exactly six months. Thus, Alaska was the children’s home state when George
commenced this action in August 2011. Though the Taunton, Massachusetts court may
have had emergency jurisdiction to issue a domestic violence protective order that could
have granted custody to Yelena,16 that order was subsequently vacated by another
Massachusetts court and thus had no continuing legal effect. Notably, Yelena did not
appeal the Massachusetts court order that vacated the earlier permanent restraining order,
which granted custody to Yelena. Under the circumstances, the Alaska superior court
did not err in concluding it had jurisdiction to hear and decide the custody case.
B. The Court Did Not Abuse Its Discretion By Awarding Primary
Physical And Sole Legal Custody To George.
Yelena alleges error in a number of the superior court’s specific factual
findings and legal conclusions. These arguments are discussed below. Because the court
properly declined to apply AS 25.24.150(g)’s domestic violence presumption, carefully
considered and properly weighed the statutory best interests factors, and correctly
applied the law, the superior court did not abuse its discretion by awarding primary
physical and sole legal custody of Isaac and Amy to George.
1. The superior court did not err by declining to apply the
domestic violence presumption.
The superior court concluded that the evidence did not support a finding of
domestic violence against either party, and thus it did not apply AS 25.24.150(g)’s
domestic violence presumption. Yelena argues that the superior court erred by failing
16
See AS 25.30.330(a) (“A court . . . has temporary emergency jurisdiction
if the child is present in [the] state and the child has been abandoned or it is necessary
in an emergency to protect the child because the child, or a sibling or parent of the child,
is subject to or threatened with mistreatment or abuse.”); M ASS . G EN . LAWS ch. 209B §
2(a)(3) (temporary emergency jurisdiction). The Barnstable, Massachusetts court found
that it had emergency jurisdiction, but that Alaska had home state jurisdiction.
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to apply the presumption because George has a history of domestic violence and is
therefore forbidden from having custody under AS 25.24.150(g) and (h). George
responds that the superior court’s finding was “overwhelmingly supported by the
record.”
Alaska Statute 25.24.150(g) provides: “There is a rebuttable presumption
that a parent who has a history of perpetrating domestic violence against the other parent,
a child, or a domestic living partner may not be awarded sole legal custody, sole physical
custody, joint legal custody, or joint physical custody of a child.” “A parent has a history
of perpetrating domestic violence . . . if the court finds that, during one incident of
domestic violence, the parent caused serious physical injury or the court finds that the
parent has engaged in more than one incident of domestic violence.”17 Where a court
makes a finding of domestic violence, it must additionally determine whether the
domestic violence requires application of the presumption.18
Whether the court’s findings on domestic violence are supported by the
record is a question of fact which we review for clear error.19 But whether the court used
the proper legal standard for applying the domestic violence presumption — including
whether the court’s findings support applying the presumption — is a question of law,
which we review de novo.20
17
AS 25.24.150(h).
18
Puddicombe v. Dreka, 167 P.3d 73, 77 (Alaska 2007) (“[W]hen the record
shows that domestic violence has occurred and the court so finds, it is plain error for the
court not to make findings as to whether the domestic violence amounted to a history of
perpetrating domestic violence.”).
19
Misyura v. Misyura, 242 P.3d 1037, 1039, 1041 (Alaska 2010).
20
See Rego v. Rego, 259 P.3d 447, 452, 460-61 (Alaska 2011) (reviewing de
(continued...)
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The superior court’s domestic violence findings were not clearly
erroneous.21 Yelena and George gave conflicting accounts of the alleged 2007 and 2011
assaults, and both have a long history of alleging abuse against the other. Because of this
contradictory evidence, weighing the evidence and evaluating credibility — a function
properly left to the trial court22 — was particularly important. In this case, trial courts
in both Alaska and Massachusetts expressed doubts about Yelena’s credibility. It is also
significant that no court made an evidence-based finding of domestic violence or sexual
abuse by George following a trial at which George was present and able to testify and
cross-examine Yelena. A review of the facts reveals that: criminal charges arising out
of the 2007 and 2011 allegations were dismissed; the Kodiak magistrate did not grant
Yelena’s petition for a long-term domestic violence protection order against George in
June 2011; and the ex parte permanent restraining order granted in Taunton,
20
(...continued)
novo whether the superior court applied the proper legal standard in considering the
provisions of AS 25.24.150); Zaverl v. Hanley, 64 P.3d 809, 820 n.29 (Alaska 2003)
(“Whether a violation of law gives rise to a legal presumption is a question of law which
we review de novo.” (citations omitted)); cf. Rockney v. Boslough Constr. Co., 115 P.3d
1240, 1242 (Alaska 2005) (citing Kirby v. Alaska Treatment Ctr., 821 P.2d 127, 129 n.5
(Alaska 1991)) (reviewing applicability of statutory presumption of compensability in
workers’ compensation proceedings as a question of law).
21
The superior court did err by concluding that Yelena’s 2001 conviction was
too dated to consider when evaluating the domestic violence presumption. There is no
express time limit on the relevance of past acts of domestic violence under
AS 25.24.150(h), and because the court found that Yelena committed an act of domestic
violence, it was clear error not to consider whether that finding required application of
the domestic violence presumption. Puddicombe, 167 P.3d at 77. But because the court
did not abuse its discretion by awarding primary physical and sole legal custody to
George, and because a single incident of domestic violence does not automatically
constitute a history of domestic violence, AS 25.24.150(h), the error is harmless.
22
See, e.g., Nancy M. v. John M., 308 P.3d 1130, 1133 (Alaska 2013).
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Massachusetts was vacated by another Massachusetts court. Based on these facts, and
given the court’s credibility findings, the superior court did not clearly err by finding that
George did not have a history of domestic violence. Further, the superior court clearly
considered the evidence of domestic violence in the context of the best interest factors
as required under AS 25.24.150(c)(6) and (7) and found that the evidence was
insufficient to support Yelena’s allegations.
Because the superior court found that George did not have a history of
domestic violence, and that finding is supported by the record, we conclude that the court
properly declined to apply the domestic violence presumption.
2. The superior court properly considered AS 25.24.150(c)’s best
interest factors.
Yelena argues that court’s best interest findings are not supported by the
evidence and that the court abused its discretion in making its custody decisions.
“Alaska Statute 25.24.150(c) requires the superior court to base its custody
rulings on the child’s best interests and lists nine potentially relevant factors that the
court must consider . . . .”23 The best interests factors include:
(1) the physical, emotional, mental, religious, and social
needs of the child;
(2) the capability and desire of each parent to meet these
needs;
(3) the child’s preference if the child is of sufficient age and
capacity to form a preference;
(4) the love and affection existing between the child and each
parent;
(5) the length of time the child has lived in a stable,
23
Rosenblum v. Perales, 303 P.3d 500, 504 (Alaska 2013) (quoting Park v.
Park, 986 P.2d 205, 206 (Alaska 1999)) (internal quotation marks omitted).
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satisfactory environment and the desirability of maintaining
continuity;
(6) the willingness and ability of each parent to facilitate and
encourage a close and continuing relationship between the
other parent and the child, except that the court may not
consider this willingness and ability if one parent shows that
the other parent has sexually assaulted or engaged in
domestic violence against the parent or a child, and that a
continuing relationship with the other parent will endanger
the health or safety of either the parent or the child;
(7) any evidence of domestic violence, child abuse, or child
neglect in the proposed custodial household or a history of
violence between the parents;
(8) evidence that substance abuse by either parent or other
members of the household directly affects the emotional or
physical well-being of the child;
(9) other factors that the court considers pertinent.[24]
Under factor one, the superior court found that Isaac and Amy generally
had typical physical, emotional, religious, and social needs for children their age. But
the court noted that Isaac was having difficulty with his mother and was confused by
Yelena and George’s relationship. The court stated, “Isaac seems to be psychologically
and emotionally traumatized” and needs counseling.
Under factor two, the superior court found that both parents were capable,
“for the most part,” of meeting the children’s needs. But the court observed that “Isaac
had terrible complications from what seems to have been the lack of proper dental care.”
The court concluded that George was better able to meet the children’s physical and
emotional needs at the time of the trial. The court did not find Yelena’s claims that
George had “poisoned the children against her” credible.
24
AS 25.24.150(c).
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Under factor three, the superior court found that the children were not old
enough for the court to consider their preferences.
Under factor four, the court found that both parents loved each child.
Under factor five, the superior court found that stability weighed towards
keeping the children with George, where they had been living for the past year.
Under factor six, the court found that neither parent seemed willing to
encourage a relationship with the other, but that George was somewhat more willing to
facilitate a relationship than Yelena. The court weighed the fact that Yelena took the
children to Massachusetts without notice against her. The court noted that it could not
consider willingness to facilitate a relationship if one parent showed that the other had
committed sexual assault or domestic violence against the other parent or the children.
Under factor seven, the superior court found no credible evidence of
domestic violence or sexual assault, child abuse, or neglect. The court stated that it took
the sexual assault accusations very seriously, but that “these accusations are not
supported by the evidence.” The court further stated, “I find myself agreeing with [the
Barnstable, Massachusetts judge] that, simply put, George is a much more credible
witness than Yelena.” But the court did note concern about Yelena neglecting Isaac’s
dental care.
Under factor eight, the court found no credible evidence that either party
had substance abuse issues that could affect the well-being of the children.
The court declined to consider any additional factors.
Having carefully reviewed the record, we conclude the superior court’s
findings are supported by the record and are not clearly erroneous. The court considered
all statutory best interest factors and did not abuse its discretion in awarding primary
physical and sole legal custody to George.
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3. The superior court did not abuse its discretion by considering
the fact that Yelena took the children to Massachusetts without
George’s consent.
Yelena argues that the superior court erred by finding that she improperly
took the children from Alaska. She suggests that she was justified in taking the children
to Massachusetts because George sexually assaulted her and she feared for her life. The
superior court considered Yelena’s taking the children to Massachusetts against her
under AS 25.24.150(c)(6). The court suggested that taking the children to Massachusetts
without informing George was evidence of a lack of willingness to include George in the
children’s lives.
In Stephanie W. v. Maxwell V., we held that the superior court must not
penalize a parent for lack of willingness to facilitate a relationship between a child and
the other parent based on a good-faith allegation of sexual abuse of the child, unless that
parent “has continued [an] unwillingness to facilitate such a relationship in the period
after the superior court made [an] evidence-based finding that [the other parent] had not
abused [the child].”25 Yelena alleges that she fled from Kodiak because of George’s
abuse. But we do not need to consider whether our reasoning in Stephanie W. extends
to a parent fleeing with the children based on a good-faith fear for the children’s safety
following allegations of domestic violence against the other parent because, in this case,
Yelena took the children to Massachusetts after the magistrate found that the evidence
did not support issuing a long-term protective order against George. Thus, Stephanie W.
is inapposite to the facts in this case.
The record supports the superior court’s finding that Yelena removed the
children to Massachusetts without notifying George, and that the removal occurred after
a court found Yelena’s allegations unsubstantiated. These facts are relevant to analyzing
25
274 P.3d 1185, 1191 (Alaska 2012).
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Yelena’s willingness to facilitate a relationship between the children and George, and our
precedent does not preclude consideration of this evidence. Thus, we conclude that the
superior court did not abuse its discretion by weighing the fact that Yelena took the
children to Massachusetts against her under AS 25.24.150(c)(6).
4. Other issues
Yelena makes a number of other arguments, none of which have merit.
a. The superior court did not abuse its discretion by
granting extensions.
Yelena argues that the superior court erred by granting multiple extensions.
George responds that the orders granting extensions were not final orders, and therefore
are not appealable.
An order granting an extension or continuance is ordinarily not appealable
because it is not a final order.26 Interlocutory review of such orders may be available
under the circumstances described in Alaska Appellate Rule 402.27 In this case,
however, Yelena is not seeking interlocutory review of an order granting a continuance,
she is challenging a final custody order. To the extent she argues that time extensions
prejudiced the final judgment, her claim is reviewable for abuse of discretion.28
26
See Alaska R. App. P. 202.
27
Appellate Rule 402 allows a party to petition for review of an otherwise
non-appealable order or decision where postponement of review: (1) “will result in
injustice”; (2) where “[t]he order or decision involves an important question of law on
which there is substantial ground for difference of opinion,” and immediate review may
advance termination of the litigation or is important to the public interest; (3) where the
trial court has “so far departed from the accepted and usual course of judicial
proceedings” that review is necessary; or (4) where “[t]he issue is one which might
otherwise evade review.”
28
Nielsen v. State, 623 P.2d 304, 307 (Alaska 1981) (citations omitted) (“The
(continued...)
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The superior court ordered two continuances over the course of the
litigation in this case. The court granted George’s unopposed motion to continue the
hearing on registering the out-of-state custody orders, moving the hearing from
September 30, 2011, to January 13, 2012. The court also granted George’s motion to
continue the July 3 trial date because George had recently hired counsel, who needed
additional time to prepare. Yelena opposed this motion, arguing that it was a stalling
tactic to keep her away from the children. The court moved the trial date to August 2.
There is no evidence that this one-month extension prejudiced Yelena. On the other
hand, the court denied George’s motion, which Yelena opposed, to reschedule a May 10
interim custody hearing to allow the Coast Guard to complete its investigation.29
Yelena did not oppose or object to the first continuance, so she is precluded
from arguing error on appeal.30 With respect to the motion she did oppose, the court did
not abuse its discretion.
b. The superior court did not abuse its discretion by
declining to appoint a custody investigator.
Yelena argues that the superior court erred by declining to appoint a court
custody investigator or guardian ad litem. George responds that neither party moved for
28
(...continued)
decision whether to grant or deny a motion for continuance is committed to the sound
discretion of the trial court . . . .”); see, e.g., Azimi v. Johns, 254 P.3d 1054, 1059 (Alaska
2011) (applying abuse of discretion standard to denial of a request for a continuance in
a civil case).
29
There is no order denying the motion to reschedule in the record, but the
hearing proceeded on May 10, 2012.
30
See D.A.W. v. State, 699 P.2d 340, 342 (Alaska 1985) (“A party may not
raise for the first time on appeal an alleged error to which he failed to object to in the trial
court.” (quoting Chugach Elec. Ass’n v. Lewis, 453 P.2d 345, 349 (Alaska 1969))).
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these appointments.
At an interim custody hearing, Yelena orally requested that the superior
court appoint a court custody investigator. The court denied her request, explaining that
the custody office was busy and it was likely no one would be able to meet with them
until the fall. Neither party filed a written motion to appoint a custody investigator.
A trial judge has discretion whether to appoint a custody investigator,31 and
here the court permissibly exercised its discretion not to appoint one. We conclude that
the superior court’s decision not to appoint a custody investigator was not an abuse of
discretion.
c. The superior court did not clearly err by finding that
Yelena failed to provide proper dental care for Isaac.
Yelena argues that the superior court erred by finding that she neglected to
provide proper dental care for Isaac. She asserts that she obtained Coast Guard medical
screenings for the children before moving to Kodiak and that they showed no chronic
dental conditions. George disputes the credibility of the Coast Guard medical screening
documents that Yelena provided.
It is not clear from the record when the cyst on Isaac’s face first appeared.
George testified that the cyst was already present when Isaac arrived in Kodiak. The
superior court admitted the Coast Guard medical screening documents at trial, and there
is no apparent basis to conclude that they are not credible. But the documents are not
particularly helpful. They simply contain a checked box indicating that the person
conducting the examination found no dental problems. And it is not clear when the
examination occurred or how extensive it was. The documents in the record do not show
any treatment before April 28, 2011, when pediatric dentists at Joint Base
31
Alaska R. Civ. P. 90.6.
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Elmendorf-Richardson diagnosed Isaac as having a “cystic lesion that was grossly
disfiguring and causing dental and maxillofacial deformity.” But George stated that he
took Isaac to the dentist immediately after Isaac arrived in Kodiak and a series of visits
occurred before Isaac was referred to the specialists in Anchorage.
Though there is arguably conflicting evidence regarding whether the cyst
was present when Isaac moved to Kodiak, it is the trial court’s role to weigh evidence
and evaluate credibility,32 and George’s testimony is sufficient to support the superior
court’s finding. Because the finding is supported by the record, we conclude that the
superior court did not clearly err by finding that Yelena neglected Isaac’s dental care.
d. The superior court did not clearly err by finding that
Isaac was “traumatized” by seeing his mother.
Yelena argues that the superior court erred by finding that Isaac was
“traumatized” by his visit with her in June 2012. Because the court’s finding is
supported by testimony at the hearing after Isaac was unwilling to visit with Yelena, we
conclude that the court did not clearly err.
e. The superior court did not clearly err by finding that
George lived in North Carolina at one time.
Yelena argues that the superior court erred by finding that George lived in
North Carolina at one time. Whether George ever lived in North Carolina appears to be
irrelevant to the outcome of this case. But, in any case, the finding was not clearly
erroneous: A California court granted George permission to move to North Carolina
with Isaac in 2004, and Yelena acknowledged that George was in North Carolina for at
least some period of time.
32
E.g., Nancy M. v. John M., 308 P.3d 1130, 1133 (Alaska 2013).
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C. It Was Error To Order Supervised Visitation Without Adequate
Findings; It Was An Abuse Of Discretion To Fail To Specify A Plan
For Achieving Unsupervised Visitation.
Yelena argues that the superior court abused its discretion by ordering
supervised visitation at George’s discretion. The superior court’s order did not give
George discretion whether to allow visitation — it required regular telephone or internet
visitation and occasional in-person visitation — but the order did require in-person
visitation to be supervised until George decided supervision was no longer necessary.
We review orders setting visitation for abuse of discretion.33 “[T]he best
interests of the child standard normally requires unrestricted visitation with the
noncustodial parent.”34 We have held that where a court deviates from this norm by
requiring supervised visitation, the decision “must be supported by findings that ‘specify
how unsupervised visitation will adversely affect the child’s physical, emotional, mental,
religious, and social well-being.’ ”35 Because that requirment is derived from the
superior court’s statutory obligation to consider certain factors when setting visitation
terms, whether the court made the required findings to support supervised visitation is
a question of law.36
33
Faro v. Faro, 579 P.2d 1377, 1379 (Alaska 1978) (citing Curgus v. Curgus,
514 P.2d 647, 649 (Alaska 1973)).
34
J.F.E. v. J.A.S., 930 P.2d 409, 413 (Alaska 1996) (citing AS 25.20.060(c)).
35
Fardig v. Fardig, 56 P.3d 9, 14 (Alaska 2002) (quoting J.F.E., 930 P.2d at
413-14) (finding that mother’s drug use was detrimental to children’s well-being was
supported by psychologist’s testimony and was sufficient to support supervision
requirement).
36
J.F.E., 930 P.2d at 413 (holding that in ordering visitation, superior court
must consider AS 25.24.150’s best interests factors, the legislative intent favoring
“frequent continuing contact with both parents” expressed in AS 25.20.060, and the
(continued...)
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Because Yelena previously left the state with the children without notifying
George, and because of Isaac’s reaction to his visit with Yelena, supervised visitation
may be appropriate. But it was error for the superior court not to make express findings
that specified why unsupervised visitation would adversely affect the children’s well­
being. The court implied that because Yelena had left with the children before, there was
a risk that she would take the children again, and the court suggested that contact with
Yelena could be psychologically damaging to Isaac. These implications and suggestions
are insufficient to support visitation restrictions.37
Moreover, when a court orders supervised visitation, the court ordinarily
should “specify a plan by which unsupervised visitation can be achieved.”38 The
superior court has discretion to establish a plan for ending supervised visitation that is
appropriate under the facts of a particular case.39 But absent a compelling reason to the
36
(...continued)
“right and responsibility of reasonable visitation” articulated in AS 47.10.84(c)). We
note, however, that where a trial court makes the required findings, whether those
findings support a particular restriction on visitation is left to the trial court’s discretion.
37
See id. at 412-13 (holding that a finding that a child’s nightmares were
reported to be worse after visiting with her father and a finding that implied acceptance
of “a psychologist’s statement that [the child] has increased anxiety and sexual acting out
after visits with her father” were not sufficient to support a supervision requirement
because they did not specify how unsupervised visitation would adversely affect the
child’s well-being).
38
Monette v. Hoff, 958 P.2d 434, 437 (Alaska 1998); see also Fardig, 56 P.3d
at 14-15.
39
See Fardig, 56 P.3d at 14-15 (plan was sufficient where the superior court
would consider unsupervised visitation on motion after the parent “under[went] a
rigorous clinical assessment showing she was clean and sober”); J.F.E., 930 P.2d at 414
(if on remand the superior court found supervision to be necessary, it “should consider
(continued...)
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contrary that is supported by the record, the court must establish a plan or criteria for
ending the supervision requirement.40 And the plan may not delegate authority to impose
a visitation restriction to one of the parties.41
Here it was an abuse of discretion (1) to fail to specify a plan by which
unsupervised visitation could be achieved, and (2) to order supervised visitation until
George reasonably believed supervision was no longer necessary. This effectively
delegated to George the decision whether to impose a condition on visitation. As the
superior court expressed in its decision, under ideal circumstances in the future, the
children will spend a significant portion of the year with Yelena unsupervised. On
remand the superior court should consider how to create an appropriate roadmap
potentially leading to unsupervised visitation. The plan may include periodic hearings,
advice of professional counselors, a gradual reduction in supervision as long as some
condition is met, or any number of other options, but it may not be left to the discretion
of one of the parents.
39
(...continued)
whether to order periodic reviews of the continuing need for the restriction and whether
to establish criteria which might signal the end to the need for the restriction.”); Monette,
958 P.2d at 437 (superior court’s order requiring supervised visitation for a period of
three years, after which the mother could seek modification, was appropriate where
mother had a history of hiding the child from the father and evidence suggested extended
contact with her could cause psychological damage).
40
See Monette, 958 P.2d at 437.
41
See Misyura v. Misyura, 242 P.3d 1037, 1041-42 (Alaska 2010)
(concluding that the superior court erred by giving one parent discretion whether to
require the other parent to attend a batterers’ intervention program in order to have
visitation with their children).
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V. CONCLUSION
For the forgoing reasons we AFFIRM the superior court’s award of primary
physical and sole legal custody to George, and we REMAND for further proceedings on
visitation consistent with this opinion.
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