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D. Kessler v. L. Kessler (3/20/92), 827 P 2d 1119
NOTICE: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers are
requested to bring typographical or other formal errors to
the attention of the Clerk of the Appellate Courts, 303 K
Street, Anchorage, Alaska 99501, in order that corrections
may be made prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
DON KESSLER, )
Appellant, ) File No. S-3936
v. ) 3AN 82 2788 CI
LINDA KESSLER, ) O P I N I O N
Appellee. ) [No. 3821 - March 20, 1992]
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Victor Carlson, Judge.
Appearances: Cheri C. Jacobus, Ross,
Gingras & Miner, Anchorage, and Kenneth
Jacobus, Anchorage, for Appellant. Helen L.
Simpson, Simpson & Thompson, Anchorage, for
Before: Rabinowitz, Chief Justice, Burke,
Matthews, Compton and Moore, Justices.
RABINOWITZ, Chief Justice, dissenting.
This appeal arises out of a child custody
determination. We will reverse a trial court's custody
modification decision only if "the record shows an abuse of
discretion or if controlling factual findings are clearly
erroneous." McClain v. McClain, 716 P.2d 381, 384 (Alaska 1986)
(quoting Gratrix v. Gratrix, 652 P.2d 76, 79-80 (Alaska 1982)).
Such abuse of discretion may occur when, in reaching its
decision, the trial court considers improper factors, fails to
consider statutorily mandated factors, or gives too much weight
to some factors. S.N.E. v. R.L.B., 699 P.2d 875, 878 (Alaska
Here, there was no abuse of discretion. The trial
court properly weighed the statutory factors set forth in AS
25.24.150 (1991) and resolved the conflicts in the evidence in
favor of Linda Kessler. "It is the trial court's function, and
not that of a reviewing court, to judge the credibility of the
witnesses and to weigh conflicting evidence. This is especially
true where the trial court's decision depends largely upon oral
testimony." Penn v. Ivey, 615 P.2d 1, 3 (Alaska 1980) (citation
omitted). Moreover, substantial conflicts in the evidence, do
not alone establish an abuse of discretion. Harding v. Harding,
377 P.2d 378, 380 (Alaska 1962).
The trial court awarded $7,000 to Linda, for her
attorney's fees and costs.1 Don argues that the court erred in
making the award because he brought his modification action in
good faith to protect his son's best interests.
In L.L.M. v. P.M., 754 P.2d 262 (Alaska 1988), we
established the standard which now governs awards for attorney's
fees incurred in prosecuting or defending motions to modify or
enforce custody and visitation orders. Guided by the standard in
AS 25.20.140 (formerly AS 25.24.300),2 we held that attorney's
fees should only be awarded against a party who brings such an
action "willfully and without just excuse."Id. at 264-65. In
our effort to strike a proper balance, we observed:
[T]he unsuccessful party who reasonably,
and in good faith, believes that his or her
action was justified by the best interests of
the children will not be deterred from action
by the possibility of an award of fees and
costs. On the other hand, the possibility of
an award against a litigant who has not acted
reasonably and in good faith may have a
deterrent effect, and in any event will
compensate the successful party.
Id. at 265.
In the case at bar, although the trial court did not
explicitly find that Don's action was willful or in bad faith,
the reasons given for the award clearly demonstrate that the
court was applying the proper standard.3 Therefore, the only
question is whether the record supports the implicit finding of
It is undisputed that Don took the parties' child to
the state of Washington without notifying his ex-wife, the boy's
mother. However, the record indicates that he did so on the
advice of counsel, because there was an ongoing Washington
custody hearing in which the mother had earlier agreed to
participate. Don's past conduct, while relevant, is not
dispositive on the question whether his present action was
undertaken in bad faith. And, in light of the other
circumstances in the case, we conclude that his act of taking the
boy out of state is insufficient evidence that he undertook this
modification action willfully and without just excuse.
The trial court also cited Don's hostility towards
Linda in its award of attorney's fees. It is abundantly clear
that there is great hostility on both sides. This, however, does
not necessarily mean that Don brought the modification action in
bad faith. The record, in fact, leaves us with no doubt that Don
genuinely believed and continues to believe that his son's
welfare will be better protected if he is awarded physical
Finally, we are unable to find support for the trial
court's conclusion that Don's motion was completely unjustified.
Don's arguments and the evidence he presented were not without
merit. Witness Janet Graham's allegations of drug abuse by the
mother, as well as the physical abuse of the boy's half-sister,
Angie, are quite serious. If one believes Graham's testimony,
the boy's interests might well be better served by a change of
custody. This, at least, was the conclusion reached by the
guardian ad litem who was appointed to protect the boy's best
In Wanamaker v. Scott, 788 P.2d 712, 715-16 (Alaska
1990), we reversed an award of attorney's fees in a custody
modification proceeding after reviewing the record and finding
little evidence of vexatious or bad faith conduct on the part of
the nonprevailing parent. In Wanamaker, the trial court changed
custody from the father to the mother and awarded attorney's fees
to the mother after finding that the father had "`engaged in bad
faith and vexatious conduct in his attempts to retain custody' of
his daughter." Id. at 715. We concluded that an award of
would run counter to the rationale we
adopted in L.L.M., that a party who
reasonably and in good faith believes his or
her actions are justified by the best
interests of the child should not be deterred
from taking appropriate action by the
possibility of an award of attorney's fees
Id. at 716. We draw the same conclusion in the present case.
AFFIRMED in part and REVERSED in part.
RABINOWITZ, Chief Justice, dissenting.
I would reverse the superior court's custody
modification decision. Review of the record persuades me that
the superior court's controlling factual findings are clearly
erroneous and that the court abused its discretion in making its
best interest child custody determination.
The core of the superior court's custody decision is
found in the following portion of its Memorandum of Decision
where it is stated:
I cannot discern an adverse impact on
Zachary by his mother and Mr. W.'s [Zachary's
step father] relationship with . . .
[Zachary's half sister], the use of marijuana
in the home, socializing in roadhouses, and
the continuing dispute between the parties
for which each party bears some
Don Kessler introduced sufficient evidence
demonstrating a change of circumstances justifying a
redetermination of Zachary's custody. See AS 25.20.110. Here
the evidence shows that Linda left the State of Alaska with
Zachary, then returned to Alaska, and has moved frequently since
her return to Alaska, that Linda and her husband have engaged in
drug and alcohol abuse in Zachary's presence, and that Linda's
husband physically abused Zachary's half sister.
Furthermore, I am of the view that the superior court
improperly weighed the relevant AS 25.24.150 factors in making
its best interest child custody determination. There is ample
evidence that Linda failed to exercise adequate supervision over
Zachary, that Linda and her husband frequently used marijuana and
alcohol in Zachary's presence, and that there was physical
violence on the part of Linda's husband against Zachary's half
1. Although Don cites and attempts to challenge an award
for attorney's fees made and entered on March 13, 1989, he did
not file a notice of appeal until May 1, 1990 (after his motion
for change of custody was denied). His challenge of the earlier
award is, therefore, time-barred. See Alaska R. App. P. 218(d).
The only attorney's fee award considered in this appeal is the
award of $7,000, entered on May 29, 1990.
2. AS 25.20.140 (1991) provides in part:
Action for failure to permit visitation
with minor child. (a) When a court order is
specific as to when a custodian of a minor
child must permit another person to have
visitation with that child, and the custodian
fails, willfully and without just excuse, to
permit visitation with the child in
substantial conformance with the court order,
the person entitled to visitation has a
separate cause of action against the
custodian for damages.
3. Judge Carlson wrote:
[t]he reasoning behind this award is the
actions of the defendant in removing the
child to the State of Washington, his
attitude of hostility toward the plaintiff
and the lack of grounds for his actions.
4. Since the good faith determination is a factual
finding, an abuse of discretion standard of review is
appropriate. See Nelson v. Jones, 781 P.2d 964, 971 (Alaska
5. In his report, the guardian ad litem concluded in part:
I recommend that custody of Zakary [sic]
be transferred to Mr. Kessler. Zakary does
not want this to occur. However, I feel that
Zak is currently being raised in an
environment where drug usage is permitted and
alcohol is abused. His mother is actively
disparaging his father and programming the
child against his father. His step sister
has been physically abused in that