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T.M.C. v. S.A.C. (9/3/93), 858 P 2d 315
Notice: This 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
) Supreme Court File No. S-5259
Appellant, ) Superior Court File No.
) 3AN-89-8092 Civil
v. ) O P I N I O N
S.A.C., ) [No. 4001 - September 3, 1993]
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage, John Reese, Judge.
Appearances: David C. Stewart, Law
Office of Hickey & Stewart, Anchorage, for
Appellant. Barbara A. Norris, Law Office of
Barbara A. Norris, Anchorage, for Appellee.
Before: Moore, Chief Justice,
Rabinowitz, Burke, Matthews, and Compton,
MOORE, Chief Justice.
RABINOWITZ, Justice, concurring.
Soon after his divorce from S.A.C., T.M.C. sought to
modify the trial court_s custody order, which granted the couple
joint custody over their daughter K.C., on the grounds that
changed circumstances required an award of sole custody to him.
The trial court did not find the changed circumstances that
T.M.C. alleged, but sua sponte found that a different change of
circumstances warranted an award to S.A.C. of sole custody. We
II. FACTS AND PROCEEDINGS
T.M.C. and S.A.C. obtained a divorce in 1990. Judge J.
Justin Ripley ordered that they share joint legal custody of
their then 2« year old daughter, K.C., with S.A.C. to have sole
and primary physical custody. The issue of custody was "highly
contested by the parties,"and though Judge Ripley found that
cooperation between T.M.C. and S.A.C. was possible, he also found
that "because the parties have not previously demonstrated the
ability to cooperate regarding these matters, [S.A.C.] should
have the final say"as to unresolvable disputes with T.M.C.
During the proceedings, T.M.C. alleged that K.C. had
suffered sexual abuse. Judge Ripley ordered an investigation by
the Division of Family and Youth Services (DFYS), in which S.A.C.
cooperated fully. The judge concluded that the tests, "although
cautiously written, square with the belief that said allegations
are groundless." In determining whether T.M.C. was fit to have
custody, Judge Ripley also considered the fact that T.M.C.
continued allegations of sexual abuse even after the DFYS
Just seven months later, T.M.C. filed a motion for
change of custody, again claiming that K.C. had suffered sexual
abuse. T.M.C. did not list all the allegations in detail,
stating that the time required to do so was an "unavailable
luxury." Once again, S.A.C. consented to counseling sessions
for K.C., and cooperated in a new DFYS investigation. S.A.C.'s
opposition brief requested an evidentiary hearing and a dismissal
of the motion, but made no request for a change of custody in her
favor. Her subsequent trial brief, however, requested sole
custody on the grounds that "any concept of cooperation and
communication between [T.M.C.] and [S.A.C.] has been so
undermined by [T.M.C._s] harassment that joint legal custody
cannot be carried out."
After conducting an evidentiary hearing, Judge John
Reese issued his findings. He concluded that K.C. had not
suffered sexual abuse. Though he found that T.M.C._s motion was
not "for the purpose of harassment,"Judge Reese did not find
T.M.C._s behavior conducive to maintaining joint custody:
4. Since the divorce [T.M.C.] has
acted in a self-centered and manipulative way
indicating he is obsessed with his ex-wife.
His letters, though couched in terms of
taking care of business, have been rude,
condescending and argumentative. His
approach in this case started as defiant,
closed and arrogant. . . .
5. While on the stand [T.M.C.] was
polite and courteous but his answers to cross-
examination were initially evasive and
focused on reiterating his own personal
argument. Only after a warning from the
bench did he quit trying to be manipulative
and turn each answer into another shot.
6. Given [T.M.C._s] approach,
joint decision making cannot work in this
case. Sole decision making regarding health
and other important issues is the only viable
alternative. [T.M.C.'s] own agenda clouds
his view. He is so involved in anger and
resentment that he is missing opportunities
to do something for [K.C.] . . . .
. . . .
19. . . . Since the divorce
[S.A.C.] has matured. Her statements in
court were direct and were corroborated by
the evidence. She has made sound decisions
surrounding [K.C.] [T.M.C.] has been
obsessed with insults and criticism against
In his legal findings, Judge Reese rejected T.M.C._s claim of
changed circumstances regarding S.A.C._s care and protection of
K.C. Nonetheless, the judge concluded that "[a] change of
circumstances does exist with regard to the ability of the
parents to communicate and make decisions together." He
therefore awarded sole legal custody to S.A.C., concluding that
making her the sole decision maker was in K.C._s best interest.
This appeal followed.
T.M.C._s sole argument on appeal relies on the language
of AS 25.20.110(a), which states two prerequisites for
modification of judicial custody orders:
An award of custody of a child or
visitation with the child may be modified if
the court determines that a change in
circumstances requires the modification of
the award and the modification is in the best
interests of the child.
The parent who moves for modification bears the burden of proving
a substantial change in circumstances. Long v. Long, 816 P.2d
145, 150 (Alaska 1991). T.M.C. argues that because he failed to
prove the change of circumstances that he alleged, one of the two
required elements for a modification of custody was not present.
Therefore, the trial court should have simply denied his motion,
without taking further action. According to T.M.C., the trial
court awarded legal custody to S.A.C. on the basis of a best
interests of the child analysis alone, in violation of AS
S.A.C. challenges T.M.C._s characterization of Judge
Reese_s decision. As S.A.C. correctly notes, Judge Reese found a
change in circumstances, simply not the change that T.M.C. had
alleged. S.A.C. argues that such a sua sponte finding is proper,
given the overriding concern of the court for the child_s best
Whether the trial court, on its own motion, can find a
change of circumstances in a child custody case is a question of
law. Therefore, this court reviews the matter de novo, and will
adopt the rule of law that is most persuasive in light of
precedent, reason, and policy. Ford v. Municipality of
Anchorage, 813 P.2d 654, 655 (Alaska 1991).
Where a court orders joint custody, many jurisdictions
allow trial courts, on their own motion, to either make such an
order, modify it, or do both. See Ann M. Haralambie, Handling
Child Custody Cases 7.14 (1983 & Supp. 1991). In Beck v. Beck,
432 A.2d 63 (N.J. 1981), the court held that because "[t]he
paramount consideration in child custody cases is to foster the
best interests of the child[,] . . . [i]t would be incongruous
and counterproductive to restrict application of this standard to
the relief requested by the parties to a custody dispute." Id.
at 71. Accordingly, the court upheld the trial court_s sua
sponte custody determination. Id. Similarly, in some states
statutory provisions expressly permit the court to make or modify
joint custody decrees on its own motion, if the best interests of
the child so require. See, e.g., Cal. Civ. Code 4600.5(i)
(West Supp. 1993) (permitting sua sponte modification of
decrees); Ill. Ann. Stat. ch. 40, para. 602.1(b) (Smith-Hurd
Supp. 1992) (allowing court on its own motion to "consider an
award of joint custody").
When courts strike down a sua sponte award or change of
joint custody, they often do so in cases where neither party
raised the issue of custody or where the court below heard no
testimony on the issue. See, e.g., In re Marriage of Birt, 510
N.E.2d 559, 564 (Ill. App. 1987) (overturning award, despite
statute permitting sua sponte action, where custody not an issue
and trial court received no testimony), appeal denied, 515 N.E.2d
101 (Ill. 1987). Similarly, the Beck court stressed that a sua
sponte award of joint custody must have support in the record in
order to survive a challenge. 432 A.2d at 71. Though it allowed
sua sponte awards, the court preferred that the parties have the
chance to address any new issues that the trial court may raise.
Similarly, under Alaska law parties in a custody
proceeding have a right to an adequate hearing, "which grants
them the opportunity to present the quantum of evidence needed to
make an informed and principled determination." Cushing v.
Painter, 666 P.2d 1044, 1046 (Alaska 1983). Thus in Cushing the
trial court erred by using an interim custody hearing, with
limited preparation time and limited presentation of witnesses,
as a vehicle for a permanent custody award. Id. Similarly, in a
case involving child support rather than custody, this court
overturned the trial court_s support award, because neither party
raised the issue in the pleadings and the husband had no chance
to present evidence. Streb v. Streb, 774 P.2d 798, 801 (Alaska
Nonetheless, Alaska law gives courts especially broad
discretion in child custody cases. "[D]uring the pendency of the
action, or at the final hearing or at any time thereafter during
the minority of a child of the marriage,"the trial court can
"make, modify, or vacate an order for the custody of or
visitation with the minor child that may seem necessary or
proper,"in accordance with the best interests of the child. AS
25.24.150(a), (c); see also AS 25.20.060(a), (c) (allowing award
of joint custody if in best interests of child). In such cases,
the trial court may decide issues on its own motion, as long as a
party has raised them and both sides have the opportunity to
present full testimony.1
Here, the trial court had the discretion to award
custody to S.A.C. T.M.C._s motion clearly raised the issue of
custody. Though S.A.C. filed no cross-motion seeking a change of
custody, her trial brief put T.M.C. on notice that she too would
make a changed circumstances argument, supporting a change of
custody in her favor. Judge Reese held an evidentiary hearing,
and T.M.C. does not claim that he was denied a full opportunity
to present his evidence and to argue the merits of his case.
Judge Reese_s sua sponte finding related to the change
of circumstances analysis, rather than the companion best
interests of the child analysis. Nonetheless, the two prongs of
the test are sufficiently interwoven to permit him to act on his
own motion. Moreover, as S.A.C. correctly notes, T.M.C. has not
challenged Judge Reese_s findings themselves. T.M.C. argues
merely that Judge Reese should not have engaged in a best
interests of the child analysis in the first place, not that the
analysis itself was erroneous. The record clearly shows T.M.C._s
lack of cooperation with the joint custody arrangement.
Sustained noncooperation between the spouses is grounds for
denying joint custody, because lack of cooperation hinders good
communication in the best interests of the child. See, e.g.,
Farrell v. Farrell, 819 P.2d 896, 899 (Alaska 1991). Therefore,
Judge Reese had the discretion to find that the continued lack of
cooperation between the parties was a change of circumstances
sufficient to award S.A.C. sole legal custody of K.C.
RABINOWITZ, Justice, concurring.
I agree with this court's holding that a trial court,
on its own motion, can find a change of circumstance in a child
custody case. Nevertheless, on the basis of the superior court's
findings, and study of the record, I would take the unusual step
of retaining jurisdiction, and ordering the parties to brief
whether or not the superior court's findings relating to sexual
abuse of the parties' child are clearly erroneous.2 Given the
paramount importance accorded to the welfare and best interests
of the child I think it imperative that this sexual abuse issue
be reviewed by this court before the superior court's custody
ruling is finalized.
1. S.A.C. also cites to statutory language allowing custody
modifications "if the court determines" that a change of
circumstances exists, AS 25.20.110(a) (emphasis added), and
argues that this language allows sua sponte determinations. We
disagree. Such language is common throughout the Alaska
Statutes, but to imply that it permits the courts to act sua
sponte on a wide range of issues would amount to a serious
deprivation of due process. Rather, the court_s power to decide
child custody issues sua sponte derives from the broad discretion
granted under statutory law.
2. The superior court, in part, made the following findings
regarding sexual abuse:
7. Physical placement has been
with [S.A.C.]. It is impossible to
absolutely prove the negative, that there has
been no child sexual abuse. In our system,
the burden of proof is placed on [T.M.C.] as
moving party, to prove that it is more likely
than not that [K.C.] is at risk, and that
[S.A.C.] has failed to take precautions for
her safety. The court has considered whether
it was reasonable for [S.A.C.] not to believe
[K.C.] was abused, and whether she has acted
reasonably whether she believes it or not.
8. The evidence indicates that
there was a report from [K.C.] and that
[T.M.C.] told lots of people about it
including Dr. [A]. Dr. [A] has a reputation
for overreacting and findings [sic] things
others don't believe are present.
. . . .
10. The content of the first
interview was inconclusive. Although [K.C.]
reported her bottom and vagina were touched
and that [S.A.C.'s boyfriend] peed on her we
don't know if these statements were coached
or told before. The interviewer did not
follow up to determine if this was personal
touch or hygiene touching which is as likely
a conclusion as any other. [S.A.C.'s
boyfriend] peeing was not determined to be
sexual and other explanations were not
pursued. The interview does not prove
anything, only raises issues.
. . . .
12. These issues were followed up
by therapist [B], by [C], by [D], by Dr. [E]
and by the Custody Investigator's Office.
These professionals did not see diagnostic
signs which would be expected in an abuse
situation. There was not physical or
emotional damage which would be typical of a
victim of sexual abuse.
. . . .
14. [T.M.C.] took [K.C.] back to
see Dr. [A] in January 1992. Dr. [A]
obtained a drawing containing a penis. Dr.
[A]'s evaluation had already been challenged
in this case. She appears to be available to
reach rapid conclusions about child sexual
abuse which are used by those persons seeking
such opinions. The court does not find Dr.
[A]'s testimony persuasive.
15. There is no absolute
resolution of the sexual abuse allegation.
Children are sexual beings and [K.C.] is at
an actively sexual developmental stage.
Sexual issues are normal at this age.
16. This court concludes it is
more likely than not that [K.C.] was not
sexually abused by [S.A.C.'s boyfriend].