Sarah D. v. John D. ( 2015 )

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@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
SARAH D., )
) Supreme Court No. S-15288
Appellant, )
) Superior Court No. 3AN-12-11124 CI
v. )
) OPINION
JOHN D., )
) No. 7015 – June 12, 2015
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Patrick J. McKay, Judge.
Appearances: Phyllis A. Shepherd, Anchorage, for
Appellant. Notice of nonparticipation filed by Kenneth M.
Wasche, Kenneth M. Wasche, P.C., Anchorage, for Appellee.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and
Bolger, Justices.
WINFREE, Justice.
I. INTRODUCTION
Sarah D. and John D. separated shortly after their daughter turned three.
Each claimed that the other was abusive and obtained a short-term domestic violence
protective order after they separated; they later stipulated to a mutual no-contact order
but violated it by continuing a sporadic romantic relationship. They sharply contested
numerous domestic violence allegations and generally cast each other in a bad light
throughout their divorce proceedings.
Sarah requested interim attorney’s fees. After the superior court denied her
request, Sarah consented to her lawyer’s withdrawal. Sarah and John then agreed to a
property settlement. Before litigating custody Sarah again requested interim attorney’s
fees and twice filed continuance motions requesting time to obtain counsel. Her motions
were denied, and she appeared pro se throughout a four-day custody trial. John’s parents
helped pay for his lawyer, and he was represented at all times. Over Sarah’s objections,
John’s father was allowed to intervene as a party for visitation purposes.
Finding John and Sarah’s relationship dysfunctional, Sarah manipulative
and guilty of one incident of domestic violence, and neither party credible, the court
awarded shared physical and sole legal custody to John and gave John’s father
unspecified visitation during John’s custodial time. Sarah appeals the court’s denials of
her requests for an interim fee award, trial continuances, and to compel a witness’s
attendance at trial. She also appeals the court’s orders granting the grandfather
intervention and visitation and the court’s domestic violence finding and custody
decision. We vacate the order granting the grandfather visitation and otherwise affirm
all but the custody decision, remanding for more detailed findings and conclusions on
domestic violence issues.
II. FACTS AND PROCEEDINGS
Sarah and John married in 2009 shortly after their daughter’s birth. Their
daughter was three years old when they separated in November 2012. At separation
Sarah and John each obtained an ex parte short-term domestic violence order against the
other, and Sarah filed for divorce. John was represented by counsel throughout the
proceedings, and Sarah had counsel until she consented to his withdrawal in mid-March
2013.
In December 2012 Sarah and John each petitioned for a long-term domestic
violence protective order against the other, but then voluntarily withdrew their petitions
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and stipulated to a mutual no-contact order permitting them to text or email each other
only about their daughter. Neither John nor Sarah honored the no-contact order; indeed,
until a month before the custody trial began in late May 2013 they routinely violated the
order to have consensual sex.
At the end of interim hearings in mid-January 2013 the parties agreed to a
shared physical custody schedule. The superior court ordered John to continue making
mortgage payments on the marital home, where Sarah and the daughter remained, and
John moved in with his parents. The parties entered into a property settlement agreement
in late March, and the court confirmed it a month later. John was to keep the marital
home, but Sarah was to live there until May 31. Therefore, for the bulk of the time
between their November 2012 separation and the late-May 2013 trial, John lived with
his parents and Sarah continued to live rent-free in the marital home.
In early April Sarah asked the superior court to postpone the May custody
trial until September. Sarah anticipated a qualified domestic relations order (QDRO) for
her share of John’s retirement but believed it would take “two to three months” before
she would “actually have access to [those] funds.” She asked for the continuance so that
she could obtain the funds, retain counsel, and allow her new counsel to prepare for
trial.1 John responded that Sarah had “consented to the withdrawal of her attorney in
March 2013” and that “inexcusable delay in employing new counsel” was not “a ground
for continuance.” John pointed out that during the February scheduling conference Sarah
1
During an earlier February trial scheduling conference, Sarah’s then-
attorney stated: “Her ability to proceed and, basically, establish funding for . . . a
custody trial is negligible right now, because she doesn’t have the funds to do so. I
mean, she’s probably going to be doing it alone if the court’s going to proceed with
custody. I’m already in arrears and I can’t continue to do that.” Sarah’s attorney
indicated that he would accept compensation from “an early QDRO order” but noted that
he did not yet have Sarah’s consent to such an arrangement.
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had anticipated a May custody trial. The court denied Sarah’s motion for a continuance
without comment.
In late April the superior court issued a divorce decree, noting that the
parties had agreed to proceed to trial over custody. The court also issued Sarah a QDRO
giving her a percentage of John’s retirement benefit worth about $16,000.
Also in late April John’s stepfather, John L. D. (JL), sought grandparent
visitation with John and Sarah’s daughter. JL, who is retired, often watched John and
Sarah’s daughter when they were working. According to JL, “[h]e has cared for [his
granddaughter] on a frequent basis since her birth [and since] the parties have separated,
both parties have continued to use [JL] as [a] caregiver.” JL argued that Sarah had tried
to cut him out of the child’s life, that he was a psychological parent to the child, and that
it was “in the best interests of [his granddaughter] to enjoy the benefits of a close
relationship with extended family members by having regular, predictable contact.” The
court allowed JL’s participation for the limited issue of grandparent contact with the
parties’ daughter.2 Sarah asked the superior court to reconsider JL’s intervention,
arguing that the order “unnecessarily infring[ed] on the inherent rights of a good parent”
and that she had evidence that JL’s “open hostility” toward her had a negative impact on
her daughter. The superior court denied the reconsideration motion at the beginning of
trial.
In early May Sarah asked the superior court for either $10,000 in interim
attorney’s fees or a three-week continuance of the custody trial. She argued that she had
no “funds to retain legal counsel” and that she was in the “final stages of retaining Pro
Bono Legal Services” but could not do so without a continuance. Sarah argued that the
2
Although JL, acting pro se, requested to be joined as a party under Alaska
Civil Rule 18, and the court granted his motion to join in part, we interpret JL’s request
as a motion to intervene under Rule 24 and treat it accordingly.
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continuance was necessary for her to “have a chance to fairly present her side [of the
case] and have it heard.” John responded that the parties’ economic situations were
comparable and that Sarah already had received the QDRO and could have assigned the
proceeds to her former attorney in lieu of payment. John noted that the court had
rejected Sarah’s April continuance request and that she should not be able to avoid
litigation by simply hiring or attempting to hire a new attorney and claiming the new
attorney needed time to become familiar with her case. At a mid-May scheduling
conference, the court indicated it likely would deny Sarah’s motion. Twenty days after
the custody trial ended the court formally denied Sarah’s requests for a continuance and
attorney’s fees.
A week before trial Sarah sought to compel Sarah and John’s marriage
counselor to testify. She noted that the superior court already had indicated such an
order would be proper — at a much earlier hearing Sarah’s former attorney had
mentioned that he planned to “seek a court order . . . to get [the marriage counselor’s]
testimony,” and the court had responded: “Right. You would probably get it.” She
argued that the counselor’s testimony would show that: John possibly had neglected
their child; during counseling John had said that his family would lie under oath for him;
and Sarah had never been violent toward John. The court denied the motion the next
day, stating that Sarah “may subpoena [the witness] and then move to enforce or
compel.”
Sarah and John litigated custody for four days in late May and early June
2013. After trial the superior court found that: Sarah and John did not comprehend the
dysfunctional nature of their relationship which “interfered in their ability to co-parent”;
their “chaotic relationship” had the “potential for emotional abuse of [their daughter]”;
but John “is more likely to disengage and maker healthier decisions for [their daughter]
with his family support system,” whereas Sarah “is manipulative and less capable of
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setting aside emotional factors when making decisions about [their daughter’s] best
interest.” But the court also found both parents could meet their daughter’s needs and
“[b]oth parents are willing and able to foster a relationship between the other parent and
[their daughter].”
With respect to the competing domestic violence allegations, the court
determined only that Sarah had “committed one act of domestic violence” against John.
After weighing the best interests of the child factors, the court awarded shared physical
custody but granted John sole legal custody, provided he continue to consult with Sarah
“on important decisions.” The court also ordered “grandparent visitation [to] occur
during the parental custodial time.”
Sarah appeals; we group her numerous points on appeal as follows:
(1) whether it was error to deny her interim attorney’s fees; (2) whether it was error to
deny her a custody trial continuance; (3) whether it was error not to compel the marriage
counselor’s trial testimony; (4) whether it was error to allow JL to participate in the trial
and to award him “de facto” custody of their daughter during John’s custodial time; and
(5) whether the legal and physical custody rulings were erroneous because (a) the court
clearly erred in finding John as willing to foster a relationship between Sarah and their
daughter and (b) the court did not account for John’s domestic violence. John has not
participated in this appeal.
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III. DISCUSSION
A. The Superior Court Did Not Abuse Its Discretion When It Declined To
Award Sarah Interim Attorney’s Fees.3
Under AS 25.24.140(a)(1) the superior court may award “attorney fees and
costs that reasonably approximate the actual fees and costs required to prosecute or
defend the [divorce] action” so long as such an award “does not contribute to an
unnecessary escalation in the litigation.” “The purpose of this statute is to ‘assure that
both spouses have the proper means to litigate the divorce action on a fairly equal
plane.’ ”4 Whether to award interim attorney’s fees to a divorcing spouse “is committed
to the sound discretion of the trial court”5 and primarily takes into account “the relative
economic situations and earning powers of the parties.”6 “A party’s economic situation
includes the divorce property division, and a party who receives a property settlement
3
We review the denial of interim attorney’s fees in a divorce proceeding for
abuse of discretion. Limeres v. Limeres, 320 P.3d 291, 296 (Alaska 2014); id. at 302
(stating superior court did not abuse its discretion in declining to award additional
interim attorney’s fees). A superior court has “broad discretion” over interim fee awards,
and its decision “will not be disturbed on appeal unless it is ‘arbitrary, capricious,
manifestly unreasonable, or stems from an improper motive.’ ” Lone Wolf v. Lone Wolf,
741 P.2d 1187, 1192 (Alaska 1987) (quoting Brooks v. Brooks, 733 P.2d 1044, 1058
(Alaska 1987)).
4
Limeres, 320 P.3d at 302 (quoting Heustess v. Kelley-Heustess, 259 P.3d
462, 479 (Alaska 2011)); accord Lone Wolf, 741 P.2d at 1192.
5
Burrell v. Burrell, 537 P.2d 1, 7 (Alaska 1975).
6
Lone Wolf, 741 P.2d at 1192. A superior court may also consider “whether
the property was divided equally and whether an equal amount in attorney’s fees was
expended by the parties.” Siggelkow v. Siggelkow, 643 P.2d 985, 989 (Alaska 1982)
(citing Johnson v. Johnson, 564 P.2d 71, 77 (Alaska 1977)).
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sufficient to cover incurred attorney’s fees should expect to pay his or her own fees.”7
“When the parties’ economic situations and earning capacities are comparable, each
party should bear his or her own costs.”8
During the December 2012 interim hearings the superior court recognized
that there was not a “pot of money” from which to award interim fees. During the
January 2013 interim hearings the court explained to Sarah’s lawyer:
I can’t order [John] to borrow money from his parents. I
mean, I can’t do that. . . . I’m not going to say, [John] you’re
going to pay $10,000. That immediately puts [John] in the
red. I mean, I have to look at what’s available before I can
start making sure that the attorneys are paid, and things to
that nature.
....
I would, if you want to try to get a QDRO, I’m willing
to cooperate in that . . . in order to pay you. But what I’m not
going to do is say, you get $10,000, and then you [counsel for
Sarah] go ahead and start executing on [John’s] paycheck,
because that doesn’t help . . . .
In mid-February Sarah’s attorney indicated he would accept compensation
from “an early QDRO order” but noted that he did not yet have Sarah’s consent to such
an arrangement. Sarah consented to her attorney’s withdrawal in mid-March and the
superior court approved the withdrawal in late April, about the same time the court
issued a QDRO giving Sarah a portion of John’s retirement plan worth about $16,000.
The court confirmed the property agreement, awarding John the marital home but
allowing Sarah to reside there until May 31. John contended at this time that although
his parents had given him money “to assist with attorney’s fees,” making the court­
7
Stevens v. Stevens, 265 P.3d 279, 290 (Alaska 2011) (per curiam).
8
Schmitz v. Schmitz, 88 P.3d 1116, 1130 (Alaska 2004).
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ordered mortgage payments on the marital home forced him to live with his parents and
that he was “for all practical purposes, penniless.”
On appeal Sarah argues that because John had a higher earning potential
than she, the superior court abused its discretion by declining to award her interim fees.
We have explained that “[t]he primary factors to be considered when awarding interim
spousal support and attorney’s fees are the parties’ relative economic circumstances,
earning capacities, and ability to pay. . . . [W]here the parties’ economic situations and
earning capacities are comparable, each party should bear his or her own costs.”9 We
have previously concluded that it is not an abuse of discretion to withhold interim fees
when the party being asked to pay them has “no obvious source of funds” from which
to do so.10
Here there is no evidence suggesting John had the ability to pay for Sarah’s
attorney’s fees. Throughout the proceedings the court was fully aware of the parties’
relative economic positions. In December 2012 the court was aware that Sarah was
working part-time and that John was temporarily between jobs. In January 2013 John
testified that he had “been losing money for a long time,” that he was behind on the
marital home’s mortgage, that he had not been steadily employed since separating from
Sarah, and that he and Sarah “constantly had problems making bills” before they
separated. At a February trial scheduling conference the court ascertained that a QDRO
from John’s retirement plan was “the only money” available for possible interim fees.
Sarah argues that the superior court should have considered the fact that
John’s parents were paying for his attorney before declining to award her any fees.
9
Hanson v. Hanson, 125 P.3d 299, 309 (Alaska 2005) (emphasis added).
10
See, e.g., Arrasmith v. Arrasmith, Mem. Op. & J. No. 1092, 2002 WL
1773383, at *3 (Alaska July 31, 2002).
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Although outside financial support for litigation expenses may in some cases alter a
party’s economic condition under the divorce exception’s fee-shifting inquiry,11 this is
not such a case. Even with his parents’ financial assistance, John was forced to move in
with them to comply with the court-ordered mortgage payments he had been making on
the marital home. John’s parents’ financial support did not change his inability to pay
Sarah interim attorney’s fees.
We also note that “[a] party’s economic situation includes the divorce
property division, and a party who receives a property settlement sufficient to cover
incurred attorney’s fees should expect to pay his or her own fees.”12 Sarah received a
QDRO in late April giving her a portion of John’s retirement benefit worth about
$16,000. Shortly after receiving the QDRO, Sarah related to the court that she owed her
attorney $7,000 and needed “time to retain funds to retain counsel.” Sarah’s attorney had
previously indicated he was amenable to an assignment of Sarah’s QDRO but was
uncertain whether Sarah would agree to one.
The superior court was aware of the QDRO and its order that Sarah remain
in the marital home and John pay the mortgage throughout the litigation, both of which
properly could have influenced the court’s attorney’s fees decision.13 Accordingly, we
11
See, e.g., Dennis Q. v. Monika M., Mem. Op. & J. No. 1499, 2014 WL
1888270, at *8 (Alaska May 7, 2014).
12
Stevens, 265 P.3d at 290.
13
Cf. Osterkamp v. Stiles, 235 P.3d 178, 192 (Alaska 2010) (accounting for
the father’s occupation of the home — the parties’ “largest and only significant
equity” — during the divorce-like proceedings when affirming an award of interim fees
against him); Arrasmith, 2002 WL 1773383, at *3 (affirming denial of wife’s request for
attorney’s fees in part because superior court properly considered husband’s obligation
“to make substantial additional payments” to wife to effectuate the marital property
(continued...)
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cannot say that the denial of interim fees was arbitrary, capricious, manifestly
unreasonable, or stemmed from an improper motive.
B. The Superior Court Did Not Abuse Its Discretion When It Denied
Sarah’s Continuance Motions.14
We will find an abuse of discretion in denying a continuance “ ‘when a
party has been deprived of a substantial right or seriously prejudiced.’ ”15 A parent’s
“right to seek custody . . . is a substantial one which the courts strive to protect.”16 When
a party’s request for a continuance stems from the withdrawal of counsel, the party’s lack
of diligence in retaining new counsel weighs against granting the continuance.17
Whether a continuance was properly denied turns on the particular circumstances of each
case, but courts should “balance the need[] for . . . promptness with the right[] to fair
13
(...continued)
distribution).
14
“We ‘will not disturb a trial court’s refusal to grant a continuance unless an
abuse of discretion is demonstrated.’ ” Sagers v. Sackinger, 318 P.3d 860, 863 (Alaska
2014) (quoting Greenway v. Heathcott, 294 P.3d 1056, 1062 (Alaska 2013)); accord
Gregoire v. Nat’l Bank of Alaska, 413 P.2d 27, 33 (Alaska 1966) (“[A] trial court’s
refusal to grant a continuance will not be disturbed on appeal unless an abuse of
discretion is demonstrated.”), cert. denied, 385 U.S. 923 (1966). When reviewing the
denial of a continuance motion we “will consider ‘the particular facts and circumstances
of each individual case to determine whether the denial was so unreasonable or so
prejudicial as to amount to an abuse of discretion.’ ” Sagers, 318 P.3d at 863 (quoting
Greenway, 294 P.3d at 1062).
15
Siggelkow v. Siggelkow, 643 P.2d 985, 986-87 (Alaska 1982) (quoting
Barrett v. Gagnon, 516 P.2d 1202, 1203 (Alaska 1973)); see also Gregoire, 413 P.2d at
33.
16
House v. House, 779 P.2d 1204, 1207 (Alaska 1989).
17
See Barrett, 516 P.2d at 1203.
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presentation of the case.”18 “ ‘Because of the necessity for orderly, prompt[,] and
effective disposition of litigation and the loss and hardship to the parties and witnesses,’
a motion for continuance should be denied absent a ‘weighty reason to the contrary.’ ”19
In mid-February 2013 Sarah learned that the custody trial was scheduled
for mid-May. A month later Sarah consented to her attorney’s withdrawal, and the court
approved the withdrawal in late April. Sarah then twice requested continuances, asking
the court in early April to postpone the trial until September and asking the court again
20 days before trial for a three-week continuance. Both motions were denied.
Sarah argues that her interest in the “care, custody and control” of her
daughter is a substantial right that was seriously prejudiced when she was forced to
litigate custody pro se. But the case she offers to show prejudice, Fidler v. Fidler,20 is
distinguishable. In that case the superior court attempted to notify a father of his custody
trial date the day before trial, but the father appeared the next day expecting a status
hearing, unrepresented and unprepared to litigate custody.21 He was denied a
continuance and trial proceeded, and his inability to effectively present exhibits or cross-
examine the mother resulted in a temporary custody award to the mother.22
18
Sylvester v. Sylvester, 723 P.2d 1253, 1256 (Alaska 1986) (citing
Siggelkow, 643 P.2d at 987).
19
Wagner v. Wagner, 299 P.3d 170, 175 (Alaska 2013) (quoting Shooshanian
v. Dire, 237 P.3d 618, 623 (Alaska 2010)).
20
296 P.3d 11 (Alaska 2013).
21
Id. at 12-13.
22
Id. at 1 3. We reversed the denial of the father’s continuance motion
because he was forced “to go to trial without being able to fairly present [his] case.” Id.
(quoting Shooshanian, 237 P.3d at 623) (internal quotation marks omitted). Before trial
(continued...)
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Sarah, in contrast, knew of the custody trial three-and-a-half months in
advance and consented to her attorney’s withdrawal two-and-a-half months before trial.
And, unlike Mr. Fidler, Sarah was able to impeach John during trial, successfully object
to testimony, and admit numerous exhibits into evidence. The superior court also took
pains to ensure that Sarah did not prejudice herself during the course of the proceedings
by allowing her considerable latitude in her lines of questioning and by fully explaining
trial processes and procedures to her. Finally, Sarah had two-and-a-half months in which
to secure counsel before trial. “Prejudice resulting from a party’s lack of diligence in
securing an attorney does not afford a basis to obtain a continuance.”23
For these reasons the superior court did not abuse its discretion when it
declined to grant Sarah’s continuance motions.
C. The Superior Court Did Not Abuse Its Discretion With Respect To
Witness Attendance.24
Sarah filed a motion to compel the parties’ marriage counselor to testify at
the custody trial, but the superior court denied her motion a week before trial, noting that
she could “subpoena [the counselor] and then move to enforce or compel.” Sarah did not
22
(...continued)
the court had unsuccessfully attempted to contact the father’s lawyer, who was away on
vacation. Id.
23
Siggelkow, 643 P.2d at 988; see also Barrett, 516 P.2d at 1203 (noting that
when “ ‘no diligence in inducing counsel to remain in the case or in securing new
counsel is disclosed,’ ” a continuance is generally not warranted (quoting Benson v.
Benson, 204 P.2d 316, 318 (Nev. 1949))).
24
We review the adequacy of the superior court’s assistance to a pro se
litigant for abuse of discretion. See Tracy v. State, Dep’t of Health & Soc. Servs., Office
of Children Servs., 279 P.3d 613, 617 (Alaska 2012); Azimi v. Johns, 254 P.3d 1054,
1059 (Alaska 2011).
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do so but now argues on appeal that the court abused its discretion by failing to compel
the counselor’s testimony.
We believe the superior court discharged its duty to Sarah as a pro se
litigant when it apprised her of the proper procedure to accomplish her goal.25 Because
Sarah did not subpoena the marriage counselor as she had been advised to do, she cannot
now claim error by the superior court.
D. We Vacate The Grandparent Visitation Order.26
1. There was no reason to award JL visitation.
Sarah argues that the visitation award to JL — allowing him visitation
“during the parental custodial time” — required McTaggart findings.27 We agree with
Sarah that the visitation award is infirm, but for a different reason. When the court asked
JL during closing arguments whether he “would want some special time for visitation
only if your son [John] didn’t get a substantial amount of visitation time,” JL responded
in the affirmative. At the end of closing arguments, the court indicated that it would only
grant separate grandparent visitation if John did not “get a substantial amount of
visitation time,” and JL agreed to this arrangement. The final custody decree split
physical custody equally between Sarah and John.
25
See Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987) (“[T]he trial judge
should inform a pro se litigant of the proper procedure for the action he or she is
obviously attempting to accomplish.”).
26
“ ‘Whether the court applied the correct standard in a custody determination
is a question of law we review de novo, determining the rule of law in light of precedent,
reason, and policy.’ ” Elton H. v. Naomi R., 119 P.3d 969, 973 (Alaska 2005) (quoting
Moeller-Prokosch v. Prokosch, 27 P.3d 314, 316 (Alaska 2001)).
27
See Evans v. McTaggart, 88 P.3d 1078, 1089 (Alaska 2004) (requiring clear
and convincing evidence that third party visitation is in child’s best interests to protect
parents’ constitutional rights in their child’s upbringing).
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The court’s visitation order does not provide concrete guidance for when
grandparent visitation shall occur, stating only: “Given the physical custody schedule,
the grandparent visitation shall take place during the . . . parental visitation, and they will
not be given a special time for grandparent visitation.” We do not construe the order to
carve out dates from Sarah’s custodial time and allocate the dates, against her wishes, to
the grandparents. Instead it appears to merely, and unnecessarily, allow grandparent
visitation during John’s custodial time.
Because the record does not show that JL had ever truly been denied
visitation with his granddaughter, and certainly not by John, there was no reason to
formally award him visitation; we therefore vacate that order.28
2. There was no de facto custody award to the grandparents.
Sarah argues that because John lived with his mother and stepfather,
worked frequently outside of Anchorage, and perhaps intended to seek more work out
of town in the future, the award of physical custody to John was a de facto award of
physical custody to the grandparents.29 Sarah asserts that this type of custody award
28
Accordingly, we do not need to decide whether the superior court abused
its discretion by allowing JL to intervene in the custody proceedings.
29
We infrequently have dealt with de facto custody arguments. In Elton H.
v. Naomi R. we decided whether a temporary award of shared physical custody to the
children’s grandmother in Anchorage and an award of legal custody to the children’s
mother in Florida was in fact an award of legal custody to the grandmother given the
mother’s great geographical distance from her children. 119 P.3d at 974-75. We found
no grant of de facto legal custody, reasoning that, “[l]ike a parent who has placed her
child in boarding school, it becomes more difficult for [the mother] to ensure that her
preferences regarding her children’s education, discipline, morality, and religious
instruction are carried out. This difficulty, however, does not deprive her of the right to
make such decisions.” Id. at 975. And in Harvey v. Cook the issue squarely before us
was whether granting sole legal and physical custody to the father, who was stationed
(continued...)
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requires clear and convincing evidentiary findings under McTaggart.30 Speculating that
John was working out of town during the custody trial and that he plans to do so again,
Sarah argues that John “was positioning his parents to exercise de facto physical custody
of [John and Sarah’s daughter] for him if he chose to work out of town.” (Emphasis
added.) But, as the hypothetical connotation of Sarah’s language suggests, John’s
absence, and therefore de facto physical custody, is only a possibility, and John’s living
situation did not transform the grandparents into de facto custodians.31 We note,
however, that if John does begin full-time work outside of Anchorage while leaving his
daughter in her grandparents’ physical custody, Sarah remains free to test her de facto
custody arguments through a custody modification motion under AS 25.20.110.
E. We Remand The Custody Decision For More Detailed Findings.
1. The superior court’s domestic violence findings are insufficient
for appellate review.
The superior court must make detailed findings on alleged incidents of
domestic violence.32 “[T]he requirement that . . . trial judge[s] file findings of fact”
assures us that they have “exercised care in ascertaining the facts, and ha[ve] employed
29
(...continued)
overseas, was in fact a grant of physical custody to the father’s new wife requiring
McTaggart findings, but the father returned home before we decided the case, mooting
the issue. 172 P.3d 794, 796-98 (Alaska 2007).
30
See supra note 27.
31
In fact, such living arrangements sometimes support a parent’s custody
argument. Cf. Green v. Parks, 338 P.3d 312, 314 (Alaska 2014) (holding superior court
did not clearly err in finding mother provided a stable living environment under
AS 25.24.150(c)(5) in part because mother testified she and her child were living with
mother’s parents “who assisted with childcare when [mother] was at work or in class”).
32
See Faye H. v. James B., ___ P.3d ___, Op. No. 6997 at 9, 2015 WL
1743199, at *4 (Alaska April 17, 2015).
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both skill and judgment in reducing [their] thoughts on contested matters to precise and
pertinent findings while the evidence is still fresh in [their] mind[s].”33 “[D]etailed and
explicit findings” are necessary on appeal to give us “ ‘a clear understanding of the basis
of the trial court’s decision, and to enable [us] to determine the ground on which the trial
court reached its decision.’ ”34 Because the findings here do not achieve this purpose,
we remand to allow the superior court to make more specific findings of fact regarding
all of the domestic violence allegations.35
Alaska Statute 25.24.150(g) creates the “rebuttable presumption that a
parent who has a history of perpetrating domestic violence against the other parent” may
not be awarded legal or physical custody of the child. A history of domestic violence
exists 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.”36 The presumption against awarding custody to a parent
with a history of domestic violence “may be overcome by a preponderance of the
evidence” if “the perpetrating parent has successfully completed an intervention program
33
Merrill v. Merrill, 368 P.2d 546, 548 (Alaska 1962); see also Alaska R.
Civ. P. 52(a); John N. v. Desiree N., Mem. Op. & J. No. 1460, 2013 WL 1933133, at *5
(Alaska May 8, 2013) (stating that when a trial court changes its mind regarding whether
an incident rose to the level of domestic violence, there should be “findings sufficient to
explain any significant change in the . . . perspective between one hearing and the next”).
34
Merrill, 368 P.2d at 548 (quoting Irish v. United States, 225 F.2d 3, 8 (9th
Cir. 1955)).
35
See, e.g., Williams v. Barbee, 243 P.3d 995, 1003-04 (Alaska 2010)
(summarizing our domestic violence custody cases and remanding for superior court to
consider whether single severe choking incident amounted to a history of domestic
violence under AS 25.24.150(h), which provides that one domestic violence incident
causing “serious physical injury” establishes a history of domestic violence).
36
AS 25.24.150(h).
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for batterers”37 — or completes similar counseling to satisfy the court that the
presumption has been overcome38 — “does not engage in substance abuse,”39 and “the
best interests of the child require” the parent with a history of domestic violence to
participate “as a custodial parent” in the child’s life.40
When both parents have a history of perpetrating domestic violence the
superior court must either: (1) award custody “to the parent who is less likely to
continue to perpetrate the violence and require that the custodial parent complete a
treatment program”; or (2) if necessary to protect the child’s welfare, award custody “to
a suitable third person if the person would not allow access to a violent parent except as
ordered by the court.”41 If both parents have a history of domestic violence, but the court
“finds that neither parent is more likely than the other to continue to perpetrate the
violence,” the court may in its discretion determine that AS 25.24.150(g)’s presumption
against custody applies to neither parent, in which case the court “should consider the
remaining best-interests factors in making its custody decision.”42 When determining
whether the presumption against custody applies because neither parent is more likely
than the other to continue perpetrating domestic violence, courts must “take a holistic or
37
Id.
38
Id. See also Stephanie F. v. George C., 270 P.3d 737, 753 (Alaska 2012)
(holding “that the rebuttable presumption . . . may be overcome by means other than the
completion of an intervention program for batterers”).
39
AS 25.24.150(h).
40
Id.
41
AS 25.24.150(i); see also AS 25.24.150(j) (requiring parent with history
of domestic violence to take certain affirmative steps before supervised or unsupervised
visitation can be awarded).
42
Mallory D. v. Malcolm D., 290 P.3d 1194, 1207 (Alaska 2012).
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qualitative approach” and not “merely count[]” each parent’s domestic violence
incidents.43 Particularly “heinous” or “egregious [acts of] domestic violence” may
suggest that one parent is more likely than the other to continue perpetrating violence,
especially when the other parent’s domestic violence is “comparatively minor.”44
Under AS 25.24.150(g) superior courts must “consider alleged incidents of
domestic violence,” and when dealing with pro se litigants, “the trial court should solicit
from the parties the information it needs to determine whether [certain incidents are]
act[s] of domestic violence.”45
a. The parties’ testimony and evidence indicate there were
allegations of serious incidents of domestic violence that
were not addressed by the superior court.
i. The separation incident involving a car seat
In November 2012 John and Sarah argued over who could use their
daughter’s only car seat, and this “emotionally ugly” incident resulted in their separation.
Sarah asked John if she could use the car seat, and he responded by locking the vehicle
containing the car seat. John testified that Sarah then became “very irate and hostile
towards” him.
When Sarah threatened to call the police, John called JL and asked him to
come over. When JL arrived, Sarah locked the front door, and John told JL to run
around to the back door. Sarah claims John restrained her to allow JL to get inside, but
John testified that as he was opening the back door for JL, Sarah slammed into it and
scared him. Sarah did not contradict John’s testimony that their daughter stood between
43
Id.
44
Id.
45
Parks v. Parks, 214 P.3d 295, 302 (Alaska 2009) (per curiam); accord
Williams v. Barbee, 243 P.3d 995, 1004-05 (Alaska 2010) (per curiam).
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them crying during this incident. JL then came inside, picked up John and Sarah’s
daughter, and sat on the sofa, but Sarah took her daughter from him and went upstairs.
ii. Protective order violations
In November 2012 John and Sarah each obtained 20-day ex parte domestic
violence protective orders as a result of their car seat argument. Sarah’s order against
John was extended until December 31, 2012. Before the order expired, John and Sarah
agreed to dismiss their petitions for long-term protective orders on the condition that the
superior court issue a no-contact order instead.
The magistrate who issued Sarah’s protective order against John wrote:
“John admits that during the first part of their relationship he was a user of drugs and
alcohol which negative[ly] affected his behavior. [H]e engaged in multiple acts of
domestic violence during that time.” The order forbade John from telephoning Sarah or
“communicat[ing] in any way,” except that he could call Sarah twice a day between noon
and 8 p.m., subject to certain restrictions, and could also call to say goodnight to their
daughter. The order forbade John from coming within 500 feet of the marital home
where Sarah then resided.
Sarah admitted in December 2012 that she had violated John’s protective
order by calling him twice to discuss sex. Sarah also recalled “having [a] telephone
conversation[] with John about what to do regarding the domestic violence cases” while
the protective orders were in effect. John admitted during trial that he and Sarah “had
sex many times since we split up.”
On December 31, 2012, as the parties were contesting domestic violence
allegations, the court cut them off and stated: “Let me tell you right now, unless
something really shows up here, you both have a history of domestic violence. Violating
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DV orders, that’s domestic violence in and of itself.”46 And the final custody decree
states that both parties “disregard[ed]” their mutual protective orders.
iii. The Mother’s Day incident
Through an affidavit Sarah contended that on Mother’s Day in 2010 John
came home drunk and began arguing with her. She alleged that as the fight escalated
John tried to see their daughter as she slept in her crib, but that Sarah placed herself
between John and the crib. According to Sarah, John then began strangling Sarah, and
she scratched his face and pried his fingers from her neck. By contrast John testified that
he went to bed after coming home and awoke to Sarah pouring ice water on his head,
angering and leading him to punch holes in the wall. John testified Sarah punched him
in the head repeatedly while accusing him of cheating on her. As a result of this incident,
John and Sarah’s daughter woke up and began to cry.
John called the police, and Sarah was arrested because of the scratches on
John’s face, but Sarah also testified that she had told the officers not to arrest John.
Sarah testified that she was acting in self-defense and that after the incident John’s face
46
AS 18.66.990(3)(G) defines domestic violence as “violating [or attempting
to violate] a protective order under AS 11.56.740(a)(1).” AS 11.56.740(a)(1) makes it
unlawful to “knowingly commit[] or attempt[] to commit an act with reckless disregard
that the act violates or would violate a provision of the protective order” “listed in
AS 18.66.100(c)(1)-(7).” Under AS 18.66.100(c)(2) Sarah’s protective order against
John prohibited “communicat[ing] in any way” with certain exceptions. John’s
protective order against Sarah does not appear in the record, although his request to
dissolve it because he no longer feared her does. In short, if the parties met to have sex
or otherwise communicated while their mutual protective orders were in place, and if
John’s order was similar to Sarah’s, then they both were committing domestic violence,
and the court should have accounted for each party’s protective order violations in its
custody analysis, especially after having found that both John and Sarah “disregard[ed]”
the protective orders. See AS 25.24.150(c)(7), (g)-(k).
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was scratched, his nose bloodied, and his eye swollen shut.47 John later wrote Sarah a
letter accepting fault for the Mother’s Day incident, admitting he had choked Sarah and
she had acted in self-defense. In another apology letter to Sarah, John wrote that he was
“sorry for putting [his] hands on [Sarah] in anger.” But John later testified he had never
assaulted Sarah, and that Sarah blackmailed him into writing these letters by threatening
to take their daughter from him.
Although John and Sarah disputed who instigated the Mother’s Day
incident and the fight’s precise contours, they agreed it occurred. Upon hearing the
parties’ testimony for the first time, the court remarked that “clearly . . . some injury . . .
happened. . . . [B]oth parties probably have engaged in domestic violence.”48 But the
court later found in its final custody decree that “neither party sustained their burden of
proof” with respect to numerous domestic violence allegations without making specific
findings of fact as to each allegation. A blanket statement that neither party was
“particularly credible” does not relieve the court from resolving domestic violence
allegations in the context of child custody proceedings, nor does it relieve the court from
explaining why its mind changed during the course of the proceedings. The Mother’s
Day incident was perhaps the most egregious domestic violence allegation and should
not have been ignored.49 Based on the evidence in the record, either John strangled
47
Sarah also presented two affidavits from coworkers attesting to her
bloodied eye and bruised neck, and the court admitted exhibits into evidence showing
John’s bruised, swollen, and scratched face.
48
See AS 18.66.990(3)(A) (defining the crime of assault in the fourth degree
— “recklessly caus[ing] physical injury to another person,” AS 11.41.230(a)(1) — as
domestic violence).
49
Cf. Michele M. v. Richard R., 177 P.3d 830, 835-38 (Alaska 2008) (holding
that when a court fails to consider its own domestic violence findings from an earlier
(continued...)
-22- 7015
Sarah, Sarah punched and scratched John, or they fought each other, in which case the
superior court should have made additional findings on whether John or Sarah acted in
justifiable self-defense.50
iv. Punching holes in the wall
Sarah argues that “punching holes in the wall of the marital home . . . could
constitute an act of criminal mischief under AS 11.46.484(a)(1).”51 John testified that
after Sarah poured water on him during the Mother’s Day incident, “I got up, and I was
noticeably disoriented and angry. [Sarah] walked away, and I walked over and I hit the
49
(...continued)
proceeding, as well as “unrebutted testimony by a witness as to the existence of domestic
abuse,” it is “plain error for the court not to further determine whether [the] previous acts
of domestic violence constituted a history of perpetrating domestic violence under
AS 25.24.150(h)” (internal quotation marks omitted)); Thomas v. Thomas, 171 P.3d 98,
106 (Alaska 2007) (holding, in custody case where father pled no contest to assault, that
“[t]he evidence of domestic violence in this case cannot accurately be characterized as
‘insignificant’ or ‘muddy.’ The superior court was presented with uncontroverted
evidence of a serious episode of domestic violence, and its failure to thoroughly consider
that issue and address it in its findings was clearly erroneous.”); 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.
If such a history is found then the path charted in subsection .150(g)-(i) must be
followed.”).
50
See Dennis Q. v. Monika M., Mem. Op. & J. No. 1499, 2014 WL 1888270,
at *6 (Alaska May 7, 2014) (explaining that domestic violence self-defense claims are
“subject to the necessity and proportionality requirements that apply to all other self-
defense claims involving non-deadly force” (citing AS 11.81.330(a))).
51
AS 11.46.484(a)(1) makes it a crime to intentionally “damage[] property
of another” without the “right to do so or any reasonable ground to believe . . . such a
right” exists. (Emphasis added.) See AS 18.66.990(3)(E) (classifying criminal mischief
as domestic violence).
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wall twice. And I put two holes in the wall, right next to the doorway. At that point she
was standing . . . in the hallway . . . .” John also testified that he owned the house, and
Sarah agreed.
In Stephanie F. v. George C. we affirmed the superior court’s finding that
punching a bathroom door during an argument was domestic violence because the
mother in that case co-owned the home.52 But we also stated: “At the outset, we reject
the suggestion that ownership of a door determines whether punching a hole in it during
an argument, in the presence of one’s spouse, can constitute domestic violence. Placing
another person in fear of imminent physical injury ‘by words or other conduct’ is
assault.”53 Therefore even if John owned the marital home outright, he still may have
assaulted or attempted to assault Sarah by punching holes in their bedroom wall while
she stood in the nearby hallway.
v. The knife-brandishing incident
John admitted during an interim hearing — and again at trial — that he had
brandished a knife and threatened to kill Sarah’s dog and slash her tires as she was
walking away from him. If John “recklessly place[d] . . . [Sarah] in fear of imminent
physical injury” or attempted to do so,54 then this was an act of domestic violence that
should have been factored into the custody analysis under AS 25.24.150(g)-(i).55
52
270 P.3d 737, 740, 750-51 (Alaska 2012).
53
Id. at 750 n.35 (quoting AS 11.41.230). See also AS 18.66.990(3)(A)
(classifying assault as domestic violence).
54
AS 11.41.230(a)(3).
55
See AS 18.66.990(3)(A).
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b. The superior court made inconsistent statements about
the domestic violence incidents.
In December 2012 the court stated, “Violating DV orders, that’s domestic
violence in and of itself.” In January 2013 the court stated that it “certainly had
testimony from both parties regarding incidents of domestic violence against each other,
including the separation [incident] and the Mother’s Day incident where [Sarah] was
arrested.” The court then stated, “Clearly there is some injury that happened. . . . [B]oth
parties probably have engaged in domestic violence.”
In August 2013 the superior court issued findings of fact and conclusions
of law. The court found that Sarah “was arrested for DV on Mother’s Day 2010 and the
charges were dropped.” The court also found that John and Sarah’s “disregard for the
Protective Orders and the no contact order heightened the litigation in this case.” The
court then contradicted statements it made during the December 2012 and January 2013
interim hearings by finding that although it had “received evidence of situational
domestic violence, each against the other[,] . . . neither party sustained their burden of
proof [for] a conclusion of law with the exception of one act when the parties separated.”
The court then concluded that Sarah “committed one act of domestic violence,”
presumably during the car seat incident that led to John and Sarah’s separation.56
When denying Sarah’s motion for reconsideration, the superior court stated
that it did not believe the parties: their marriage was “ ‘drama’ seeking,” their testimony
was incredible, and there was no proof of domestic violence because neither party was
56
The superior court apparently concluded that the car seat incident
constituted domestic violence under AS 18.66.990(3)(A), which brings “a crime against
the person under AS 11.41” within the ambit of domestic violence. Under
AS 11.41.230(a)(3) “[a] person commits the crime of assault in the fourth degree if
. . . by words or other conduct that person recklessly places another person in fear of
imminent physical injury.”
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“actually placed in fear of assault.” Instead, the court concluded that their “situational
acts” were merely “part of the dysfunctionality that permeated the parties[’] time
together.”
c. Sarah’s appeal
On appeal Sarah argues that the superior court erred by not considering
three acts of domestic violence: (1) John “putting his hands on [Sarah] in anger”;
(2) John “punching holes in the wall of the marital home”; and (3) John “threatening to
kill [Sarah’s] dog and slash her tires.” Sarah further argues that under Parks v. Parks,
because she litigated custody pro se, the court should have solicited further information
from her to determine which alleged incidents were acts of domestic violence.57 We
agree with Sarah.
Under Alaska law domestic violence encompasses both certain specified
crimes and attempts to commit those crimes.58 In the context of fourth degree assault,
defined as “recklessly plac[ing] another person in fear of imminent physical injury,”59
we have held that because domestic violence encompasses an attempted assault, “[i]t is
irrelevant whether [the alleged victim] was actually placed in fear.”60 But the superior
57
214 P.3d 295, 302 (Alaska 2009) (per curiam).
58
AS 25.90.010 defines domestic violence by reference to AS 18.66.990, and
AS 18.66.990(3) defines domestic violence as “one or more of the following offenses . . .
or an attempt to commit the offense.” (Emphasis added.)
59
AS 11.41.230(a)(3).
60
Parks, 214 P.3d at 300. (“Throwing water at [mother] was therefore
‘domestic violence’ . . . if [father], in doing so, ‘attempted’ to place [mother] in fear of
imminent physical injury. . . . We therefore remand for a determination whether [father]
attempted to place [mother] in fear of imminent physical injury when he threw water at
her. If he did, the trial court must determine whether [father] has overcome
(continued...)
-26- 7015
court found only one incident of domestic violence by reasoning that neither John nor
Sarah was “actually placed in fear of assault.” This was incorrect: it was not necessary
for Sarah or John to actually fear one another; rather, to find domestic violence, the
superior court should have determined whether Sarah or John “attempted” to place the
other “in fear of imminent physical injury.”61 On remand the superior court should gauge
the alleged perpetrator’s intent rather than the victim’s actual fear or lack thereof. If
Sarah appears pro se, the court should solicit from her the information it needs to
determine whether certain alleged incidents are in fact domestic violence.62
With respect to the numerous domestic violence allegations, the superior
court’s factual findings do not “allow us to glean from the record what considerations
were involved.”63 On remand the superior court must consider the parties’ allegations
and testimony noted above and must make detailed and specific findings on the domestic
violence allegations.64
60
(...continued)
AS 25.24.150(g)’s presumption against joint legal custody.”); accord Harris v.
Governale, 311 P.3d 1052, 1058 (Alaska 2013) (“[N]o matter which person was the
aggressor, an attempted assault occurred if the perpetrator attempted to put the victim in
fear of imminent physical injury, regardless of success, and attempted assault is a
domestic violence crime.” (emphasis in original)).
61
Parks, 214 P.3d at 300; Harris, 311 P.3d at 1058.
62
Parks, 214 P.3d at 302.
63
Dragseth v. Dragseth, 210 P.3d 1206, 1208 (Alaska 2009) (quoting Smith
v. Weekley, 73 P.3d 1219, 1226 (Alaska 2003)).
64
The superior court should consider on remand the strength of the domestic
violence allegations in Sarah’s “Testimonial Affidavit,” including but not limited to:
(1) John broke a bathroom door to get to her — John also admitted to kicking down a
doorframe but when no one was around; (2) John threatened in some detail to kill her;
(continued...)
-27- 7015
2. It was not clearly erroneous to find that John was willing to
encourage Sarah’s relationship with their daughter.65
Joint legal custody permits both parents to “share responsibility in the
making of major decisions affecting the child’s welfare” but is proper only if “the parents
can cooperate and communicate in the child’s best interest.”66 Sarah attacks the award
64
(...continued)
(3) John kicked the family dog down the stairs and laughed; (4) John kicked down the
bedroom door; and (5) John threatened to kill Sarah’s friend — at trial John equated
murdering Sarah’s friends to love. The court also should consider the strength of John’s
domestic violence allegations, including but not limited to: (a) Sarah once punched him
in the side of the head; (b) Sarah threatened to kill him; and (c) Sarah threatened to break
his wrists if he cheated on her.
In the event the superior court finds that either parent has a history of
domestic violence under AS 25.24.150(h), we note that two of our recent decisions —
Kristina B. v. Edward B., 329 P.3d 202, 207-09 (Alaska 2014) and Stephanie F. v.
George C., 270 P.3d 737, 750-55 (Alaska 2012) — deal in some depth with overcoming
the presumption against awarding legal or physical custody of a child to a parent with
a history of domestic violence.
65
We review findings of fact in custody cases for clear error, see Red Elk v.
McBride, 344 P.3d 818, 822 (Alaska 2015), and “find clear error when, after review of
the entire record, ‘we are left with a definite and firm conviction’ a mistake occurred.”
Wee v. Eggener, 225 P.3d 1120, 1124 (Alaska 2010) (quoting Dingeman v. Dingeman,
865 P.2d 94, 96 (Alaska 1993)). “We give ‘particular deference to the [superior] court’s
factual findings when they are based primarily on oral testimony, because the [superior]
court, not this court, performs the function of judging the credibility of witnesses and
weighing conflicting evidence.’ ” Jaymot v. Skillings-Donat, 216 P.3d 534, 539 (Alaska
2009) (quoting Millette v. Millette, 177 P.3d 258, 261 (Alaska 2008)); see also Monsma
v. Williams, 385 P.2d 107, 110 (Alaska 1963).
66
Jaymot, 216 P.3d at 540 (quoting Farrell v. Farrell, 819 P.2d 896, 899
(Alaska 1991)) (internal quotation marks omitted).
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of sole legal custody and shared physical custody to John on the ground that the court
clearly erred by determining that John was willing to foster Sarah’s relationship with
their daughter.67 We disagree.
The court’s primary concern in crafting the custody award was the impact
of John and Sarah’s “chaotic” and “dysfunctional” relationship on their daughter’s
emotional well-being. The court found that John was “more likely to disengage and
make healthier decisions for [their daughter]” whereas Sarah was “manipulative and less
capable of setting aside emotional factors when making decisions about [their
daughter’s] best interest[s].” Therefore, even if Sarah were more willing than John to
foster a relationship with the other parent in their daughter’s best interests, the way she
went about doing so could have negatively impacted their daughter. Although it is
important for each parent to encourage the other parent’s relationship with the child, the
importance of this factor here was properly discounted by the court’s findings that the
parents’ relationship was dysfunctional, but that John was better able to control his
emotions.68
67
See AS 25.24.150(c)(6).
68
See Green v. Parks, 338 P.3d 312, 315 (Alaska 2014) (affirming favorable
custody award to mother in part because superior court “found that [mother]’s reluctance
to allow [father]’s family to spend time with their daughter was understandable to a
certain extent, given [mother]’s difficult relationship with [father]”); Riggs v. Coonradt,
335 P.3d 1103, 1107 (Alaska 2014) (“On balance, the court viewed the likelihood that
[father] would try to shut [mother] out as less harmful to the children than [mother]’s
desire to use custody as a weapon against [father].”); Limeres v. Limeres, 320 P.3d 291,
298 (Alaska 2014) (affirming award of sole legal custody to mother in part because
father “significantly and intentionally disparaged [the mother] in the presence of and
directly to the children on multiple occasions”); James R. v. Kylie R., 320 P.3d 273, 278
(Alaska 2014) (affirming award of primary physical custody to mother in large part
because superior court reasoned that father’s willingness to foster child’s relationship
(continued...)
-29- 7015
The record supports the superior court’s findings. John’s testimony shows
he realized that he and Sarah were not great communicators and that the less they
interacted, the less chance there would be for emotional harm to their daughter. Both
John and JL testified that Sarah often berated them, and at custody exchanges in front of
John and Sarah’s daughter Sarah would sometimes deliver scathing comments and imply
that John did not give her enough money to support their daughter. And John also
testified that: he wanted his daughter to be a part of Sarah’s life; he was willing to accept
Sarah’s input on an appropriate preschool for their daughter; he often invited Sarah to
play-dates with him and their daughter; he supported Sarah’s relationship with their
daughter and did not bad mouth Sarah in their daughter’s presence; he recognized and
approved of the love between Sarah and their daughter; and he often encouraged
goodnight telephone calls between Sarah and their daughter. Although there certainly
is evidence to the contrary given John and Sarah’s deeply troubled relationship, it was
not clearly erroneous to find that John was willing to foster Sarah’s relationship with
their daughter.
Although this factual finding was not clearly erroneous, we do not address
whether the superior court properly balanced the best interest factors because its findings
regarding domestic violence were insufficient, and, even if the AS 25.24.150(g)-(i)
68
(...continued)
with mother was belied by father’s extremely negative characterizations of mother
throughout the trial); Jaymot, 216 P.3d at 541 (affirming award of sole legal custody to
father in part because he was “more composed and capable of extracting himself from
the anger of the moment”).
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restrictions on custody do not apply, it may have to “reevaluate on remand the relative
weights” of the best interest factors under AS 25.24.150(c), as well as the domestic
violence allegations.69
IV. CONCLUSION
We VACATE the grandparent visitation order. We otherwise AFFIRM the
superior court’s rulings except for the custody decision, and REMAND to allow the
superior court to enter more detailed and specific findings and conclusions on the
relevant domestic violence issues and, if appropriate, enter a new custody decision. We
retain jurisdiction.
69
See Williams v. Barbee, 243 P.3d 995, 1006 (Alaska 2010).
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