search the entire site.
or go to the recent opinions, or the chronological or subject indices.
Rooney v. Rooney (4/12/96), 914 P 2d 212
NOTICE: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers
are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501; (907) 264-0607.
THE SUPREME COURT OF THE STATE OF ALASKA
VIRGINIA J. ROONEY, )
) Supreme Court No. S-6535
) Superior Court No.
v. ) 1WR-87-44 DR
THOMAS D. ROONEY, ) O P I N I O N
Appellee. ) [No. 4334 - April 12, 1996]
Appeal from the Superior Court of the State
of Alaska, First Judicial District, Wrangell,
Larry C. Zervos, Judge.
Appearances: Virginia J. Rooney, Sitka,
pro se. Mary E. Guss, Ketchikan, for
Before: Rabinowitz, Matthews, Compton, and
Eastaugh, Justices. [Moore, Chief Justice,
This appeal requires us to review the superior court's
award of primary physical custody of Morgan Michael, the
biological child of Virginia Rooney, to Thomas Rooney.
II. FACTS AND PROCEEDINGS
Virginia J. Rooney (Virginia) married Thomas D. Rooney,
Sr. (Tom) in Wrangell, on March 24, 1973. Virginia is Tlingit
and Tom is Caucasian. Virginia had one child from a previous
relationship, Jeffrey. Tom adopted Jeffrey shortly after the
couple was married. The couple also had one child together,
Thomas, Jr., who was born in 1973. Because both Jeffrey and
Thomas, Jr. have reached the age of majority, their custody is
not at issue in this appeal.
Tom and Virginia "had an on again off again
relationship." During one period of separation Virginia became
pregnant with Morgan Michael who was born on October 4, 1983.
Tom is not the biological father of Morgan, nor does it appear
from the record that he legally adopted Morgan.
Tom and Virginia divorced in October 1987. The couple
was awarded joint legal custody and shared physical custody of
Thomas, Jr., and Morgan. However, the parties continued in an
intimate relationship, and the physical custody provisions were
In December 1992 the parties permanently separated.
After the separation, both parties remained in Wrangell, and
Morgan spent approximately half the week with each parent.
In 1993, Tom remarried. During the same period,
Virginia decided to move to Sitka to attend the University of
Alaska Southeast. She wanted to bring Morgan with her and
discussed the matter with Tom. They were unable to reach an
agreement and the beginning of the school year was approaching,
so Virginia felt she "was forced to take matters into [her] own
hands." In August, she moved with Thomas, Jr. and Morgan to
Sitka. This decision precipitated a motion by Tom to modify the
previous custody decree.
A hearing was held before the superior court in
Wrangell on September 1, 1993. The superior court entered an
interim custody order shortly thereafter in which it awarded
primary physical custody during the school year to Tom.
Additionally, the superior court appointed a guardian ad litem
In a letter to the superior court dated March 25, 1994,
the GAL recommended that Morgan live alternate years with each
parent until he reaches high school. At that time he could
decide in which community he wished to spend his high school
years. The GAL noted that Virginia and Tom "appear equally
capable and desirous of meeting Morgan's needs and providing a
stable environment that would also allow an open and loving
relationship between Morgan and his other parent." The GAL
discussed the history of past substance abuse by both parents,
stating that they both had overcome their problems and remained
sober for several years. She commended both for their personal
growth and their work to improve their parenting skills. In
recommending the split physical custody arrangement, she noted
that Morgan "is a child of mixed ethnic background"and needs to
be exposed to both cultures. She also emphasized that Morgan
favored this arrangement. Finally, she stated that Morgan was a
good student and made friends easily and that she therefore
believed he would "be able to move easily from one community to
The superior court rejected the GAL's recommendation
and instead awarded primary physical custody during the nine-
month school year to Tom in Wrangell. Morgan would spend the
summer and most other school vacations with Virginia in Sitka.
The superior court found that both parents were equally capable
and that "with either of his parents Morgan would be safe,
protected, and would thrive." The major factor which the
superior court relied on in placing Morgan with Tom was
continuity. The court found that Morgan was thriving in Wrangell
and there was therefore no reason to risk moving him. Virginia
III. STANDARD OF REVIEW
We have repeatedly emphasized that the superior court
enjoys broad discretion in its determination of custody
questions.1 We will only overturn such a determination when it
can be shown that the trial court abused this discretion or that
its factual findings are clearly erroneous.2 "An abuse of
discretion in a modification proceeding is established by a
showing that the trial court considered improper factors in
making its determination, that it failed to consider statutorily
mandated factors, or that too much weight was assigned to some
A. Did the Superior Court Err in Not Granting
Virginia a Custody Preference?
At the time Tom and Virginia were divorced in October
1987, the superior court entered the following relevant finding
The parties have three minor children:
Jeffrey Allen Rooney, born October 4, 1970,
age 16; Thomas Duane Rooney, Jr., born August
1, 1973, age 14; and, Morgan Michael Rooney,
born October 4, 1983, age 3.
In its 1987 decree of divorce, the superior court ordered, in
Plaintiff and defendant shall have joint
custody of the parties three minor children,
Morgan Michael Rooney, Thomas Duane Rooney
and Jeffrey Allen Rooney with physical
custody as set out in the Findings of Fact
and Conclusions of Law.
In deciding Tom's motion to modify the custody
provisions of the 1987 decree, the superior court stated at the
outset of its Findings of Fact and Conclusions of Law:
Tom Rooney is not the biological parent of
Morgan Rooney, but he is clearly Morgan's
legal and psychological parent and the
parent/child relationship and status was
[sic] determined at the time of the original
Given this finding, the superior court determined that "[t]he
appropriate standard to be applied in this case is the best
interests of the child." Virginia argues that this was error
because this court has expressed a preference for the biological
parent in custody disputes between a biological parent and a
Tom argues that by failing to raise the issue of the
biological preference at the time of their 1987 divorce
proceedings, Virginia is precluded from doing so now. He
contends that the parties treated Morgan as a child of their
marriage from the time of his birth, through divorce proceedings
in 1987, and up until Tom filed his motion to modify the custody
provisions of the 1987 decree. Tom contends, based on the
statutory language in AS 25.30.110,6 that because the issue was
resolved in the 1987 proceeding, it is binding on Virginia.7
There is merit in Tom's position.
Collateral estoppel or issue preclusion bars
the relitigation of an issue where: (1) the
party against whom the preclusion is employed
was a party to or in privity with a party to
the first action; (2) the issue precluded
from relitigation is identical to the issue
decided in the first action; (3) the issue
was resolved in the first action by a final
judgment on the merits; and (4) the
determination of the issue was essential to
the final judgment. Johnson v. Alaska State
Dept. of Fish & Game, 836 P.2d 896, 906
Jackinsky v. Jackinsky, 894 P.2d 650, 654 (Alaska 1995). The law
of the case doctrine also bars litigation of the issue of
Morgan's parenthood subsequent to the 1987 decree. Austin v.
Fulton Ins. Co., 498 P.2d 702, 704 (Alaska 1972).
The superior court, in denying Virginia's motion for
reconsideration of its custody decision, rejected Virginia's
argument that she was entitled to a preference as the biological
parent of Morgan and stated in part:
In this case, Morgan was conceived and born
during the parties' marriage. He has been
accepted as the parties' child since his
birth. The parties' initial divorce treated
Morgan as a child of the marriage.
Given the above, and the principles of collateral estoppel and
law of the case doctrine, we conclude the provisions of the 1987
decree of divorce are controlling. As noted, the decree treated
Morgan Michael Rooney as a child of Tom and Virginia, and
Virginia made no claim to a preference right at that time. Thus,
Virginia is now precluded from asserting that, as the biological
parent, she is entitled to a preference over Tom, a nonbiological
parent, with respect to the custody of Morgan.8 We therefore
conclude that the superior court did not err in ruling that the
appropriate standard to be applied in regard to Tom's motion to
modify custody is that of the best interests of the child.
B. Did the Superior Court Properly Consider the
Relevant Statutory Factors?
Virginia argues that the superior court misconstrued
certain statutory factors, and ascribed too much weight to the
continuity factor and not enough weight to other statutory
factors. Before addressing the superior court's factual findings
regarding the specific statutory criteria, we note that as a
general matter, the court did not give too much weight to the
"continuity" factor. It appears from the superior court's
findings that the superior court was not relying on the
continuity factor to the exclusion of the other statutory
factors. Instead, it found that Morgan's interests would be
equally served by placement with either of the parents and
therefore that the single factor which weighed heavily for Tom
rather than Virginia should dictate the outcome.9 Such reasoning
is permissible.10 We now address the superior court's application
of the specific statutory criteria.
Alaska Statute 25.24.150(c)(5) requires that in making
custody determinations the court must consider "the length of
time the child has lived in a stable, satisfactory environment
and the desirability of maintaining continuity." With respect to
the continuity factor, the superior court stated:
The length of time Morgan has lived in a
stable, satisfactory environment, and the
desirability of maintaining continuity is the
most important statutory factor from the
court's perspective. This factor weighs
heavily in favor of primary physical custody
being with Tom Rooney. There is no need to
risk moving Morgan from Wrangell, where he is
thriving, when the court does not have to.
Virginia argues that the superior court's finding with
regard to continuity was clearly erroneous because the court
considered only "continuity of place," while disregarding
"continuity of family." She contends that the stability which
Morgan experienced in Wrangell was due to her "presence and
protection." She notes that throughout the time which they were
together, Tom's job kept him away from home for long periods of
time. "Thomas Sr. testified that it wasn't until December of
1992 that he came home to take care of Morgan according to the
terms of the custody agreement. From 1987 until this time,
Virginia was the primary custodian to the minor children, with
the assistance of Thomas Sr.'s mother." Virginia also points out
that the superior court noted that Morgan was having problems
merging with his step-mother and her children in Wrangell, and
contrasts that to the consistent care which Morgan has received
The superior court does seem to have treated the
concept of continuity somewhat narrowly.11 Continuity and
stability for a child come not only from staying in the same
house, or going to the same school. Consideration should also be
given to social and emotional factors such as who the primary
care-giver was for the child and whether the child would be
separated from siblings or family members if he was placed with
one parent rather than another.
On the basis of our study of the record, however, we
cannot say that the superior court abused its discretion. First,
according to Virginia, Tom's mother assisted her in raising
Morgan. Thus, the presence of both Tom's mother and Morgan's
brother in Wrangell suggests that at least two important people
in Morgan's past support network will remain with him in
Wrangell. Additionally, Morgan is not being thrust into a new
custody situation by being placed with Tom. From some time in
1992 to September 1993, when the motion to modify was filed,
Morgan lived four days a week with Tom. Third, the superior
court addressed many of the psychological aspects of Morgan's
relationship with his father in its other findings. For example,
the court found that "[t]he love and affection existing between
Morgan and his parents . . . [is] equal as to Tom and Virginia."
Finally, the superior court addressed the problem of Morgan's
"merging"with his new step-mother by stating that the family was
taking active steps to deal with this issue. Thus, despite the
fact that the separation from his mother for long periods of time
will have a destabilizing effect, it is not clearly erroneous to
find that continuity, in its broader sense, is served by keeping
Morgan in Wrangell. Thus, we find no error in this aspect of the
superior court's custody decision.
2. Morgan's preference
The superior court is required to consider "the child's
preference if the child is of sufficient age and capacity to form
a preference." AS 25.24.150(c)(3). In the present case, the
superior court disregarded Morgan's stated preference that he
alternate years between his parents. The superior court reasoned
that "Morgan has made it clear that he does not want to have to
make a choice and any expressed wish for equal time with his
parents most likely arises out of his desire to be extremely fair
to both of them."
Virginia argues that Morgan did make a choice: he chose
not to choose between his parents, but instead to live with both
of them. She contends that in light of the GAL's findings that
Morgan is an extremely bright and capable ten year old, the
record shows he had the capacity to express his preference.
Therefore, she concludes that it was error for the superior court
to disregard Morgan's expressed preference to alternate years
with each parent.
The statutory standard is meant to give weight to the
child's wishes. Thus, where a child wishes to divide his time
between his parents because he desires to, that preference should
be given weight. However, where a stated preference results
entirely from the child's desire to satisfy his parent's wishes -
- or because he does not wish to offend either of them -- such a
preference does not fall within the statutory ambit.
The superior court's finding on this issue amounts to a
conclusion that Morgan's stated preference was unreliable in
light of his desire not to hurt either of his parents. We
conclude that this finding was not clearly erroneous. The GAL
testified that Morgan sees things in equals. She also told the
superior court judge that he should not discuss the issue with
Morgan because he might simply tell the judge what he thought the
judge wanted to hear. This suggests that throughout the
proceeding Morgan had sought to satisfy others rather than his
own desires. Based on this evidence it was reasonable for the
superior court to conclude that Morgan was unable to articulate a
preference and chose the alternating years schedule because he
perceived it as the only way to satisfy both his parents.
We therefore conclude that the superior court did not
abuse its discretion by ordering a custody arrangement contrary
to Morgan's stated preference.
3. Cultural needs
With regard to Morgan's cultural needs, the superior
court found as follows:
The evidence indicated that Tom Rooney in the
past has ignored certain cultural/heritage
needs of Morgan. This is relevant to the
statutory factor found in AS 25.24.15(c)(1)
and (2). This statutory factor tips the
balance in Virginia's favor. However, this
was not entirely Tom's doing, as the evidence
showed that Virginia Rooney did not pursue
this issue with the older two boys, Jeff and
Tommy. In the future, Tom needs to be sure
to address these needs and not wait until
Morgan brings them up, and he needs to take
more responsibility in ensuring that Morgan
has contact with Virginia's family members in
Wrangell without having to specifically ask
Virginia points to certain evidence adduced at trial to
the effect that there is a lack of cultural opportunities in
Wrangell due to the absence of native elders and the small native
population. She notes that the problem is particularly acute for
young native males because of the lack of role models. Finally
she contrasts this with the "abundance of programs"available in
Sitka, as well as the exposure which Morgan would get to his
cultural heritage from living with her on a day-to-day basis.
Although it seems clear from the evidence that the
opportunities for Morgan to be exposed to his Tlingit heritage
are greater in Sitka than in Wrangell, this is not the sole test
in custody disputes. Rather, the court must consider the child's
cultural needs as one factor in the overall context of his best
interests. We think it clear from the above finding that the
superior court considered Morgan's cultural needs, and it is
implicit that the court believed these needs could be met through
its custody order. Morgan will be with his mother for three
months each year as well as during various school vacations. She
undoubtedly will also see him upon her visits to Wrangell.
Additionally, the superior court mandated that Tom take measures
with Morgan to assure adequate contact with Virginia's family
members in Wrangell and otherwise address his cultural needs.
Finally, noting that "Morgan is a child of mixed ethnic
background," the GAL stated her belief that it is "imperative
that Morgan learn all that he can about both cultures." Thus, we
conclude that the superior court adequately considered Morgan's
cultural needs and therefore did not abuse its discretion.
C. Did the Superior Court Err by Disregarding the
GAL's Custody Recommendation?
Virginia's final point is that the superior court erred
by disregarding the GAL's custody recommendation. The superior
court gave four reasons for rejecting the alternating years
proposal: (1) both parents do not favor the arrangement; (2)
Morgan has thrived in his current living situation; (3) Morgan is
approaching his teen-age years, with their accompanying out-of-
family activities; and (4) the nine-month/three-month arrangement
still provides significant contact with each parent. Virginia
argues with respect to the first reason, that even though she
preferred primary custody, given a choice between the current
arrangement and alternating years she would choose the latter.
The superior court is not required to follow the GAL's
recommendation. So long as the superior court's reasons for
rejecting the custody investigation are not clearly erroneous,
the superior court does not abuse its discretion.13 In the
present case, reasons (2) - (4) above are supported by the
record,14 and standing alone are sufficient to reject the
alternating years arrangement. Thus, any error with respect to
reason (1) is harmless. Therefore we conclude that the superior
court did not abuse its discretion.
The superior court's modification of the 1987 decree as
it relates to the custody of Morgan is AFFIRMED.
1 E.g., DeHart v. Layman, 536 P.2d 789, 792 (Alaska
2 Starkweather v. Curritt, 636 P.2d 1181, 1182 (Alaska
1981) (per curiam).
3 Id. at 1182-83.
4 The superior court additionally found:
The parties have entered into a child custody
arrangement, which has been filed with this
court. . . . The agreement provides, inter
alia, as follows:
a. Thomas and Virginia shall have joint
custody of Morgan Michael Rooney and Thomas
Duane Rooney, Jr. . . .
5 See Buness v. Gillen, 781 P.2d 985 (Alaska 1989).
6 AS 25.30.110 states:
A custody decree rendered by the superior court of
this state having jurisdiction under AS 25.30.020 binds
all parties who have been served in this state or
notified in accordance with AS 25.30.040 or who have
submitted to the jurisdiction of the court, and who
have been given an opportunity to be heard. As to these
parties the custody decree is conclusive as to all
issues of law and fact decided and as to the custody
determination made until that determination is modified
in accordance with law, including the provisions of
7 Tom also argues that Virginia did not sufficiently
raise the biological parent preference issue in the present
proceeding. This argument is without merit. Although, the issue
was not raised in Virginia's pre-trial memorandum, the issue was
raised during the testimony of both Tom and Virginia, during
closing arguments, and in Virginia's Motion for Reconsideration.
8 In Turner v. Pannick, 540 P.2d 1051, 1055 (Alaska
1975), this court discussed the substantive standard to be
applied in custody cases between a parent and a non-parent.
There we said:
[P]arental custody . . . [is] preferable and
only to be refused where clearly detrimental
to the child . . . . Unless the superior
court determines that a parent is unfit, has
abandoned the child, or that the welfare of
the child requires that a non-parent receive
custody, the parent must be awarded custody.
9 Although Virginia is correct in noting that some of the
other factors did weigh in her favor, the superior court
discounted the difference that these factors would make. It
seems clear that although the cultural needs factor and the
problems of merging with Morgan's new step-family may have tipped
the balance in favor of Virginia, continuity weighed much more
heavily in favor of primary placement with Tom.
10 See Evans v. Evans, 869 P.2d 478, 482 (Alaska 1994).
11 Cf. McQuade v. McQuade, 901 P.2d 421 (Alaska 1995).
12 AS 25.24.150(c) provides that
the court shall consider
(1) the physical, emotional, mental,
religious, and social needs of the child;
(2) the capability and desire of each
parent to meet these needs . . . .
13 See Nichols v. Mandelin, 790 P.2d 1367, 1373 (Alaska
14 Virginia does not dispute the other three reasons given
by the trial court.