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Vachon v. Pugliese (11/8/96), 931 P 2d 371
Notice: This opinion is subject to 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,
telephone (907) 264-0607, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
LINDA VACHON, )
) Supreme Court No. S-
) Superior Court No.
v. ) 4FA-94-2511 CI
ROBERT PUGLIESE, ) O P I N I O N
Appellee. ) [No. 4428 - November 8, 1996]
Appeal from the Superior Court of the State of Alaska,
Fourth Judicial District, Fairbanks,
Richard D. Savell, Judge.
Appearances: Christine A. McLeod and Carol H. Daniel,
Alaska Legal Services Corporation, Fairbanks, and Bonnie J. Coghlan,
Fairbanks, for Appellant. Michael A. MacDonald, Downes, MacDonald &
Levengood, P.C., for Appellee.
Before: Compton, Chief Justice, Rabinowitz, Matthews,
Eastaugh, and Fabe, Justices.
COMPTON, Chief Justice, dissenting.
Linda Vachon appeals orders awarding custody of her
daughter, Jeana Pugliese, to Robert Pugliese and denying her motion for
reimbursement of past child support. We considered this appeal on an expedited
basis and on August 6, 1996, issued an order reversing the custody award and
remanding for entry of an order granting custody to Linda. This opinion
discusses the reasons for that order. It also addresses the non-custody issues.
II. FACTS AND PROCEEDINGS
Robert and Linda met in 1979 in Massachusetts. At that
time Linda lived in Massachusetts and Robert lived in Alaska. They lived
together in Alaska from 1986-87 and 1990-93. Linda became pregnant soon
after she moved to Alaska in 1990. After Jeana was born on March 7, 1991,
Linda and Jeana moved in with Robert and the parties lived together in
Fairbanks until September 1993. Robert and Linda never married.1
In September 1993 Linda moved out of Robert's home,
taking Jeana with her. After Linda and Jeana moved out, Robert did not see
Jeana for about six weeks. Eventually Robert began visiting Jeana once or twice
a week. In September 1993 Robert began paying child support of $300 a month.
The parties did not seek or obtain a court order regarding custody, visitation, or
support, and formalized no agreement about these issues.
Linda moved with Jeana to Sharon, Massachusetts, in June
1994. When Linda and Jeana left Alaska, Linda did not tell Robert that they
were leaving or immediately inform him of their whereabouts. Linda testified
that she left Alaska in this manner because Robert had been stalking her and she
was afraid for her and Jeana's safety. A week or two after leaving Alaska,
Linda called Robert at work. When Robert answered, Jeana told him that she
did not live in Alaska anymore. Suspecting that Linda was either at her
mother's home or at her sister's home, Robert contacted Linda at her sister's
home. Robert testified that he continued to try to talk to Linda at least once a
week, sometimes twice a week. Robert alleges that Linda "would not discuss
anything with him."
On September 12, 1994, Robert petitioned the superior court
to establish paternity, custody, visitation, and support, requesting that he be
granted sole legal and primary physical custody of Jeana. Robert also moved for
temporary orders requesting, inter alia, joint legal and physical custody and
visitation. On November 21 Judge Richard D. Savell ordered Linda to return
Jeana to Alaska for visitation with Robert within seven days. On November 23
Robert notified Linda that he had purchased Jeana an airline ticket for a
December 4 Massachusetts departure and a January 5 return. On November 28
Linda petitioned the Norfolk Division Probate and Family Court in
Massachusetts for a temporary order. On the same day that court granted Linda
temporary custody of Jeana and issued a temporary order asserting jurisdiction
over Jeana for all matters "including, but not limited to custody, visitation and
child support." The Massachusetts court set the matter for a December 12
On December 2 Linda moved in the Alaska court to stay or
vacate the November 22 order pending resolution of the jurisdictional issues
between the Alaska and Massachusetts courts. Linda asked for expedited
consideration due to the visit scheduled for December 4. Following a December
2 hearing, Judge Niesje J. Steinkruger, sitting in Judge Savell's absence,
declined to stay or vacate the November 22 order. Linda did not allow the
scheduled visit to occur.
On December 7 Linda filed a motion requesting that Alaska
decline jurisdiction. On December 12 Judge Savell, without argument or written
opposition from Robert, held that Alaska had jurisdiction, and ordered that
visitation take place. Thereafter, Robert had visitation with Jeana in Alaska
from December 15 to January 14. Robert moved for another month-long visit,
and on March 30 the court ordered a second visitation "for a [three] week period
to be chosen"by Robert.
Following a four-day trial in May and June, the court issued
oral findings and conclusions awarding primary physical custody to Robert so
long as the parties lived in separate communities, and shared physical custody if
Linda moved back to Alaska. The superior court awarded Linda visitation in
Alaska as "frequently as possible,"and held that Linda should have at least two
two-week periods of visitation in Massachusetts in the upcoming year, with each
party bearing the cost of one visit.
The court's oral and written findings discredited Linda's
credibility and completely rejected her testimony regarding domestic abuse,
stalking, and her fear of Robert. The court found that Linda's actions in moving
to Massachusetts would constitute custodial interference under Strother v. State,
891 P.2d 214 (Alaska App. 1995), and that "[e]xcept for [Linda=s] actions in
interfering with [Robert=s] relationship with Jeana, both parents have
demonstrated the willingness to meet Jeana's physical, emotional, mental and
religious needs." The court ordered Linda to pay $50 per month in child
support, and denied her request for back child support because it concluded she
had failed to meet her burden of proof under Matthews v. Matthews, 739 P.2d
1298, 1299 (Alaska 1987).
Linda appeals from the custody award and the denial of her
claim for child support.2
A. Standard of Review
Trial courts are vested with broad discretion in making child
custody determinations. Gratrix v. Gratrix, 652 P.2d 76, 79 (Alaska 1982).
"We will reverse a trial court's resolution of custody issues only if [we are]
convinced that the record shows an abuse of discretion or if controlling factual
findings are clearly erroneous." Id. at 79-80 (citing Horutz v. Horutz, 560 P.2d
397, 399 (Alaska 1977)). We have held that
while "great weight must be accorded to the trial judge's
experience and to his evaluation of demeanor testimony,"his discretion is not
unlimited. On review we must determine whether that discretion has been
abused, perhaps by assigning too great a weight to some factors while ignoring
others, perhaps by elevating the interests of one of the parties to the dispute
above that of the child, perhaps by making a clearly erroneous finding with
respect to some material issue, or perhaps in some other manner.
Id. at 80 (quoting Horton v. Horton, 519 P.2d 1131, 1132 (Alaska 1974)
(footnote omitted)). We review fact findings under the standard of clear error.
McDaniel v. McDaniel, 829 P.2d 303, 305 (Alaska 1992). We apply our
independent judgment to questions of law, adopting "the rule of law that is most
persuasive in light of precedent, reason and policy." Brooks v. Brooks, 733
P.2d 1044, 1055 (Alaska 1987) (quoting Guin v. Ha, 591 P.2d 1281, 1284 n.6
B. Custody Award
Linda argues that the custody award should be reversed
because the superior court abused its discretion by relying on clearly erroneous
factual findings that were critical to the court's award, by improperly weighing
the statutory factors, and by being improperly motivated by a desire to punish
Linda or to advocate for Robert at the expense of Jeana's best interests.
Although we find that the superior court made several erroneous factual findings
regarding Linda's credibility, we conclude that these errors were not prejudicial.
We also conclude that the superior court was not biased against Linda.
Nonetheless, we reverse the custody award because the court erroneously
weighed the statutory factors.
1. Clearly erroneous factual findings
Linda argues that the superior court clearly erred in making
findings about her alcohol consumption, stalking allegations, Jeana's discipline,
Robert's presence at home, and Robert's refusal to pay for day care, causing the
superior court to erroneously assess her credibility. She asserts that these
erroneous credibility assessments were critical "because [they] cast doubt in [the
court's] mind that Linda left Alaska because she feared Robert and because
[they] led [the court] to doubt Linda's future ability to foster Robert's
relationship with Jeana despite her stated intentions."
The superior court explained the impact of its credibility
findings in the following way:
Credibility is very important in this case. The sad
observation that a Court makes sometime[s] is that people who view the
emotional involvement or the prize to be won in litigation is so overpowering or
so weighty that, in their minds, they justify embellishments, fabrications even,
and false testimony. It can be offered to place themselves in a good light or to
place an opponent party in a bad light. Often times, and there are examples in
this case, the issue which is less than candidly explained to the Court, is not of
critical materiality to the dispute and the Court is left with greater damage from
the misleading statements and the effect it has on findings of credibility than if
the truth had even been told because the stain of adverse findings of credibility,
or the weakness resulting from eroded credibility, splashes on to other areas and
weakens the integrity of other factual premises.
We conclude that the court did not clearly err with respect to
its findings regarding Linda's disciplinary methods, Robert's presence at home
when Linda and Jeana lived with Robert, and Robert's refusal to pay for day
care.3 Although we conclude that the court clearly erred in finding that Linda
made false or misleading statements regarding her current alcohol consumption
and her allegation that Robert stalked her,4 these errors were harmless given the
remaining findings bearing on Linda's credibility. In addition to the findings
challenged by Linda, the superior court found Linda's credibility to be harmed
by her statements regarding Angela Pugliese's allegations of sexual abuse, her
silence in the face of Angela's testimony that they did cocaine together, her false
statements made in day care assistance applications, and her reluctant admission
of marijuana use. It is highly improbable that, but for the errors regarding
Linda's alcohol consumption and stalking allegations, the superior court would
have assessed Linda's credibility more favorably.
2. Consideration of statutory custody factors
When the custodial parent moves out of state, a court must
consider whether it is in the child's best interests to remain with that parent,
given the move. McQuade v. McQuade, 901 P.2d 421, 424 (Alaska 1995);
House v. House, 779 P.2d 1204, 1208 (Alaska 1989). Alaska Statute
25.24.150(c) lists the factors to be considered in determining the child's best
The court shall determine custody in accordance with the
best interests of the child under AS 25.20.060-25.20.130. In determining the
best interests of the child 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
(3) the child's preference if the child is of
sufficient age and capacity to form a preference;
(4) the love and affection existing between the
child and each parent;
(5) the length of time the child has lived in a
stable, satisfactory environment and the desirability of maintaining continuity;
(6) the desire and ability of each parent to allow
an open and loving frequent relationship between the child and the other parent;
(7) any evidence of domestic violence, child
abuse, or child neglect in the proposed custodial household or a history of
violence between the parents;
(8) evidence that substance abuse by either parent
or other members of the household directly affects the emotional or physical
well-being of the child;
(9) other factors that the court considers pertinent.
Linda argues that the court improperly balanced these
factors by placing "too great a weight on Linda's perceived inability to allow an
open, frequent and loving relationship between Robert and Jeana and not enough
weight on the continuity and stability of Jeana's placement."
The superior court considered all the statutory factors. It
found that both parents "have the capability to meet the physical, emotional,
mental and religious needs of Jeana"and that "[t]here is obvious, demonstrable
love and affection between Jeana and both parents." Although it recognized that
Jeana would have a stable, satisfactory life in Massachusetts, it discounted the
stability and continuity factor "because it runs contrary to the statutory . . .
policies against parental kidnapping, forum shopping, the [Uniform Child
Custody Jurisdiction Act] and the importance placed on having both parents in a
child's life. "The court announced that "[t]he key [determinative] factor"was
Linda's "failure to allow an open and frequent relationship with [Robert] and the
belief that she would not do so in the future."The court stated that "[t]his factor
more than counter-balances the desirability of maintaining Jeana's stability with
[Linda] in her new home, created only when she wrongfully fled with Jeana."
The superior court's conclusion that Linda engaged in
wrongful conduct underlies its assessment of these statutory factors. It stated
that she "wrongfully fled with Jeana." By referring to policies against "parental
kidnapping,"it implied that Linda violated those policies. Its finding that Linda
would not allow an open and frequent relationship between Jeana and Robert
appears to be founded, at least in part, on its conclusion that Linda's actions
constituted "custodial interference"under Strother v. State, 891 P.2d 214
(Alaska App. 1995).
These underlying conclusions are incorrect.
The record does not support a finding of custodial interference. In
Strother, the court of appeals analyzed the custodial interference statute, AS
11.41.330, and examined the necessary actions and mental state for the crime of
custodial interference. It held that custodial interference can occur in the
absence of a court order establishing custody because natural parents are
presumptively joint custodians with co-equal rights to the child. 891 P.2d at 218
n.1, 223. It cautioned, however, that when the person accused of custodial
interference is a joint custodian, "the actus reus of the crime must be examined
with care." Id. at 223. To be guilty of custodial interference the defendant must
commit the actus reus, "the act of taking, enticing, or keeping a child from a
lawful custodian with 'no legal right to do so,'"with the necessary mental state,
knowing that he or she has no legal right to take the child and intending to keep
the child for a protracted period. Id. The Strother court noted that a joint
custodian could legitimately take temporary exclusive custody of a child, even
taking a child out of state, "because such an act generally does not deprive the
other joint custodian of his or her custody rights." Id. at 224. "But if a parent
takes custody of the child and exercises that custody in a manner that defeats the
custody rights of the other parent, unlawfully 'keeping' the child from the other
parent, then the parent's conduct constitutes the actus reus of custodial
interference." Id. In holding that the necessary actus reus existed in Strother,
the court of appeals found that the defendant had taken the child to another state,
told the mother that she would never see him or their child again, and kept the
child's whereabouts unknown from the mother. 891 P.2d at 217, 225.
When Linda left Alaska she returned to Massachusetts,
where the parties had met, where both parties had extended families, and where
Linda had lived before moving to Alaska where she lived for a relatively short
time. Linda went where Robert knew she would go, to the homes of her sister
and her mother. Linda contacted Robert's family in Massachusetts and arranged
day care for Jeana through Robert's sister-in-law. Soon after arriving in
Massachusetts Linda called Robert and, although the conversations were not
always amicable, the parties remained in contact. Linda allowed Robert to speak
with Jeana. This is not a case where a parent went underground to conceal the
child's location, violated a court custody order, or made threats that the
noncustodial parent would never see the child again.5 The superior court
consequently erred in concluding that Linda's conduct constituted custodial
Similarly, the court also erred in characterizing Linda's
conduct as wrongful and implying that Linda had violated policies against
parental kidnapping.7 These errors did not merely misclassify the nature of
Linda's conduct, but appear to have been critical to the superior court's
assessment of the statutory custody factors and its refusal to give full credit to
the undisputed opinions of the custody investigators regarding stability and
We also conclude that it was clear error to find that Linda
would in the future impede a healthy relationship between Jeana and Robert, a
circumstance the court considered the key determinative factor in deciding
custody. After the jurisdiction issue was settled, Linda complied with all of the
court's orders and Robert had two lengthy visits with Jeana. Linda also testified
that she believed it was important for Jeana to spend time with her father and it
is uncontested that after Linda and Jeana moved out of Robert's Fairbanks home
it was Linda who pursued and facilitated visitation between Jeana and her father.
These facts are undisputed. Therefore, the court's unfavorable findings
regarding Linda's credibility cannot justify its conclusion that Linda failed to
foster a healthy relationship between Robert and Jeana. We conclude that the
erroneous findings of wrongful conduct and custodial interference influenced and
invalidated the superior court's conclusion that Linda had failed to foster a
healthy relationship between Jeana and Robert and would continue to do so in
Moreover, even if Linda had previously interfered with
Robert's relationship with Jeana, a finding that she would continue to do so
would be necessarily speculative given her recent record of compliance with
court orders. It is an abuse of discretion to change custody based on such
speculation when other, less severe, remedies are available to address any future
misconduct, the stability and continuity factor strongly disfavors a custody
change, and the remaining statutory factors are in balance. A custody change
necessarily conflicts with stability and continuity. A less intrusivey and
visitation arrangements should have been attempted before changing Jeana's
Moreover, in holding that Linda's past and future failure
was the key determinative factor, the court discounted or rejected the opinions of
the two custody investigators. They opined that Linda should remain Jeana's
primary physical custodian. Both investigators concluded that Jeana was a well-
cared-for child who was developing appropriately and that it was unwise to
disrupt Jeana's life at this point with a change in custody from the person who
had been her primary caregiver. No contrary expert opinion was offered. The
superior court discounted the recommendation that it was desirable to maintain
the continuity of Jeana's life in Massachusetts on the theory that "it runs contrary
to the statutory . . . policies against parental kidnapping, forum shopping, the
UCCJA and the importance placed on having both parents in a child's life."
Because the record does not support the superior court's legal conclusions
regarding Linda's move to Massachusetts, the policy concerns mentioned by the
superior court are unwarranted and are not a valid basis for discounting the
experts' undisputed opinions about the important stability and continuity factor.
Further, when there is a conflict between the stability and continuity factor (a
factor that clearly favored Linda), and the factor regarding the custodial parent's
desire and ability to allow an open and loving frequent relationship (a factor that
potentially favored Robert), a change in custody should not be ordered until the
court has explored less intrusive means of obtaining compliance unless it finds
such means would be futile.
We recently considered the standards for determining
custody of a minor child when one parent chooses to move out of state. We held
that "a court must consider the best interests of the children by applying the
criteria in AS 25.24.150(c), and in doing so should consider whether there is a
legitimate reason for the move." McQuade, 901 P.2d at 424. In McQuade, we
noted that Alaska has not adopted an anti-removal policy and that we have
"consistently avoided mandating rigid rules for making custody determinations."
Id. We concluded that the standard announced in House, 779 P.2d at 1208, is
the proper standard to apply when one parent is moving out of Alaska.
McQuade, 901 P.2d at 424. In House, we noted that "[m]ost states permit
custodial parents to move out of state with their children if there is a legitimate
reason for the move." 779 P.2d at 1208 (citing 1 Jeff Atkinson, Modern Child
Custody Practice ' 7.01, at 390 (1986)). We concluded that the "decision of the
family to move to [California] was based upon a valid reason, that is, a reason
which was not primarily motivated by a desire to make visitation . . . more
difficult." House, 779 P.2d at 1208.
The evidence here does not establish an illegitimate motive.
The motive element is not mentioned in AS 25.24.150(c); it most directly bears
on the "frequent relationship"factor. Linda expressed mixed motives for the
move at trial and to the investigators. The superior court found that Linda's
stated reason for returning to Massachusetts C her fear of Robert C was
unfounded, and that she "left Alaska because she decided that it would be easier
to raise Jeana without[Robert=s] interference."
We have rejected the court's characterization of Linda's
actions as constituting custodial interference under Strother, and have concluded
that the court erred in stating that Linda "wrongfully fled"to Massachusetts with
Jeana. Linda's desire to be near her family and Robert's family, i.e., Jeana's
maternal and paternal grandparents, is sufficient reason to justify her relocation
and to conclude that it would be in the child's best interests to remain in the
custody of the present custodial parent. A desire to live distant from the
estranged partner is not remarkable. Certainly under the circumstances of this
case, given the family presence in Massachusetts and Linda's and Jeana's
shallow Alaska roots, it is not the sort of illegitimate reason that should become
the controlling factor, justifying rejection of the stability and continuity factor.
Further, the high probability Robert will be able to exercise appropriate
visitation rights minimizes judicial concern about mixed motives (both valid and
illegitimate reasons) for a move.
We note with approval the recent California Supreme Court
case of In re Marriage of Burgess, 913 P.2d 473, 481 n.5 (Cal. 1996), where in
order to frustrate the father's contact with the minor children, but did so for
sound 'good faith' reasons, it was not required to inquire further into the wisdom
of her inherently subjective decisionmaking." As the California Supreme Court
[O]urs is an increasingly mobile society. Amici curiae point
out that approximately one American in five changes residences each year.
Economic necessity and remarriage account for the bulk of relocations. Because
of the ordinary needs for both parents after a marital dissolution to secure or
retain employment, pursue educational or career opportunities, or reside in the
same location as a new spouse or other family or friends, it is unrealistic to
assume that divorced parents will permanently remain in the same location after
dissolution or to exert pressure on them to do so. It would also undermine the
interest in minimizing costly litigation over custody and require the trial courts to
"micromanage"family decisionmaking by second-guessing reasons for everyday
decisions about career and family.
Id. at 480-81.
We noted in McQuade, and emphasize here, that when a
custodial parent decides to move out of Alaska, the best interests of the child
must be determined "based upon the facts and circumstances of each particular
case." 901 P.2d at 424.
Setting aside the erroneous conclusion that Linda would not
foster an open and healthy relationship between Jeana and Robert, the statutory
best interest factors did not justify awarding custody to Robert. Linda was
Jeana's primary caregiver and her sole custodian (apart from visitation) after the
parties separated. Given the undisputed opinions of the two custody
investigators in Alaska and Massachusetts that, in the interests of continuity and
stability, Jeana should remain with Linda, it was an abuse of discretion to change
the status quo and award custody to Robert.
Because the trial court made a legal error in discounting the
continuity and stability factor, we reverse the order granting custody to Robert
and direct the trial court to enter an order granting custody to Linda. We do not
remand for reconsideration because we conclude, as a matter of law, that the
continuity and stability factor controls the result of this case. That factor
compels the conclusion that Linda be awarded custody.
3. Sua sponte evidentiary objections
Linda asserts that the superior court improperly took on the
role of advocate for Robert at trial, elevating Robert's interests and the trial
judge's desire to punish Linda above Jeana's best interests by making sua sponte
evidentiary "objections"and advocating for Robert on five occasions. Although
we have already reversed the custody determination with instructions that Jeana's
custody be awarded to Linda, we reach this issue because Linda suggests that
these rulings reflect lack of impartiality and because on remand the court may
have to make additional discretionary rulings.
We conclude that these rulings were permissible and reveal
no partiality or bias. Three of these incidents involved hearsay issues. The
court excluded testimony in only one of these three incidents. The fourth
incident involved a sua sponte ruling that questioning by Linda's counsel was
argumentative.8 Linda provides no record citation for the fifth incident, where
the superior court ruled against the presentation of privileged testimony. Linda
consequently waives this issue. Raris v. Greek Corner, 911 P.2d 510, 511 n.5
(Alaska 1996); Alaska R. App. P. 212(c)(8)[c].
It is not an abuse of discretion for a judge to make sua
sponte evidentiary rulings under certain circumstances. 1 John W. Strong,
McCormick on Evidence ' 55, at 224 (4th ed. 1992) ("[T]he failure by the party
does not of itself preclude the trial judge from excluding the evidence on his own
motion if the witness is disqualified for want of capacity or the evidence is
incompetent, and he considers that the interests of justice require the exclusion
of the testimony."). However, "[i]t is only when the evidence is irrelevant,
unreliable, misleading, or prejudicial, as well as inadmissible, that the judge
should exercise his discretionary power to intervene." Id. at 225. A judge
should not intervene if the evidence is reliable and valuable and is only
inadmissible due to technical exclusionary rules or a privilege protection. Id.
Hearsay objections go to the competence of the evidence, are not mere technical
exclusions, and therefore are within the discretionary power of the judge to
exclude if justice requires. See id. at 224 n.20 (citing a hearsay exclusion in
support of the rule that judges may exclude evidence absent an objection).
Additionally, ruling that Linda's counsel's question was argumentative is not an
abuse of discretion, but is a permissible exercise of judicial power "to control the
presentation of evidence so as 'to make the interrogation and presentation
effective for the ascertainment of truth.'" Id. at 225 n.21 (quoting Fed. R. Evid.
611(a)); Alaska R. Evid. 611(a), commentary at 513 (stating that the subsection
(a) of the state rule mirrors the federal rule). The superior court did not abuse
its discretion in making sua sponterior court's improper advocacy for Robert.
The rulings however were well founded and the superior court explained that it
could allow the hearsay testimony and then find that Linda had produced no
evidence, but it would "rather not proceed that way."In this respect, the
superior court attempted to help Linda, arguably at Robert's expense. Linda
presents no evidence to substantiate her allegation that the superior court was
motivated by a desire to punish her. Her argument that that was how it appeared
and that the "punishment was evident in [the superior court's] advocacy for
Robert at trial"is not as self-evident as Linda suggests. Because a proper
purpose can be readily discerned in these rulings, we find no abuse of discretion
and reject Linda's claim that the superior court improperly advocated for Robert
or punished Linda.
C. Past Child Support
Linda argues that the superior court should have ordered
Robert to reimburse her for past child support and should have applied Alaska
Civil Rule 90.3 to calculate the amount due. The superior court, holding that
Matthews v. Matthews, 739 P.2d 1298 (Alaska 1987), governed Linda's claim,
altogether denied past child support because Linda failed to meet her burden of
proving actual expenses incurred.
Although we instructed the trial court in Matthews to
determine the actual amount the custodial parent reasonably expended and to
equitably allocate this amount between the parents, 739 P.2d at 1299, our ruling
there is not determinative of the issue now presented because we were not asked
in Matthews to decide whether newly-enacted Rule 90.3 governed the issue. We
now reach the issue for the first time.
Application of Rule 90.3 has the advantage of simplicity and
consistency. It is desirable to have a consistent rule regarding support
obligations so that potential liabilities can be calculated with some certainty.
See, e.g., Alaska R. Civ. P. 90.3, Commentary I.B. ("Predictable and consistent
child support awards will encourage the parties to settle disputes amicably and, if
resolution by the court is required, will make this process simpler and less
expensive."). Requiring proof of actual costs can lead to prolonged disputes
when the interests of custodial parents in maximizing support may encourage
deception and the interests of non-custodial parents in minimizing support may
disadvantage the children. Rule 90.3 itself is relatively well-defined. Its
standards are well-known to the trial courts, and reported appellate decisions
interpret it. Attempts to calculate actual out-of-pocket expenses are not only
difficult, but are also likely to underestimate incremental costs attributable to
support. Therefore, we hold that absent extraordinary circumstances, courts
should apply the calculation methodology of Rule 90.3 to determine amounts to
be reimbursed to custodial parents for support of children during periods not
covered by support orders.
We note that this use of the Rule 90.3 standards does not
violate the prohibition of Rule 90.3(h)(2)9 against retroactive modification of
arrearages. There was no existing child support order for the period for which
Linda sought reimbursement. Consequently, applying Rule 90.3 under these
circumstances does not modify any existing arrearage. Given our conclusion
that the superior court should have applied Rule 90.3, and the absence of any
dispute that Linda was Jeana's custodian, it is necessary to reverse the denial of
past child support.
We REVERSE the custody determination and REMAND for
entry of an order granting primary physical custody to Linda and for further
proceedings to set appropriate visitation rights for Robert. We REVERSE the
issue of reimbursement for past child support and REMAND for calculation
under Rule 90.3.
COMPTON, Chief Justice, dissenting.
I dissented from the August 6, 1996 Order reversing the
custody award and remanding the case with instructions that an order awarding
custody to Ms. Vachon be entered. I expressed the following view:
I would affirm the judgment of the superior court. The
court considered all relevant statutory criteria in determining custody, including:
(1) Ms. Vachon's stated reasons for her unannounced departure from Alaska
with the couple's child, which it found pretextual and not credible; (2) the
stability of the child's environment - gained at the expense of Ms. Vachon's
pretextual departure from Alaska, relocation in Massachusetts, and resulting
denial of Mr. Pugliese's regular visitation and contact with the child in
Fairbanks, where she had lived since birth - balanced against the desire and
ability of each parent to allow an open and loving frequent relationship between
the child and the other parent, which it found utterly lacking in Ms. Vachon; and
(3) the importance of enforcing statutory policies against parental kidnapping,
forum shopping, and the Uniform Child Custody Jurisdiction Act. It concluded
that "the desire and ability of each parent to allow an open and loving frequent
relationship between the child and the other parent,"AS 25.24.150(c)(6), was
the "key determinative factor"in awarding custody to Mr. Pugliese.
If the superior court applied an incorrect legal standard, a
proposition with which I would not agree, the remedy should be to remand the
case to that court with directions that it apply the correct legal standard. If the
superior court [arguably] abused its discretion, the standard which I believe
should be applied [to this case], I find Ms. Vachon's argument devoid of merit.
I have reviewed the court's "written discussion of its reasons
for granting the relief"requested by Ms. Vachon. The reasons are not now
more persuasive than before they were reduced to writing. The message
conveyed by this case is both clear and disturbing: if the self-appointed child
custodian can remove the child from the state and keep the child away long
enough, even if the self-appointed custodian must return for an eventual trial on
the custody issue, the statutorily articulated preference for having custody
decisions made in the "home state"loses any value. Highlighting this point is
the fact that the court has embarked upon a judicial prioritization of the statutory
criteria found in AS 25.24.150(c), a policy it has never before endorsed. The
court holds that if there is a conflict between '' 150(c)(5) and (6), "a change in
custody should not be ordered until the court has explored less intrusive means
of obtaining compliance unless it finds such means would be futile. . . . [W]e
conclude, as a matter of law, that the continuity and stability factor controls the
result of this case." Op. at 16, 19. The mischief this prioritization will lead to
cannot be minimized. It should not be ignored.
It was only after Ms. Vachon lost on the jurisdictional issue
that she began to comply with Alaska court orders. By that time she had kept
the child away from the "home state"for at least six months. She had
reestablished family relationships, and had begun creating a new "stable
environment"for the child.
By the time of trial it becomes of little consequence where
the trial is held. The policies which the superior court concluded were
important, i.e. policies regarding parental kidnapping, forum shopping, and
principles relating to uniform child custody jurisdiction, apparently are not
worthy of judicial enforcement. Even though the court ably distinguishes this
case from the criminal proceeding at issue in Strother v. State, 891 P.2d 214
(Alaska App. 1995), the policies underlying all are the same. The superior
court's findings regarding Ms. Vachon's violation of those policies are not
clearly erroneous, apparently only irrelevant.
1 Linda was married to Vincent Morrison until July 18, 1991. Linda
admits that Robert is Jeana's biological father and should be adjudicated the
father, but asserts that Morrison "was not disestablished as the presumptive
2 Linda lists a number of possible appellate issues in her statement of
points on appeal. Her failure to provide substantive discussion or authority
demonstrating error waives any argument the court erred in rendering the
following rulings: (1) denying her jurisdiction motion and failing to require
Robert to file an opposition to the motion; (2) denying her motion to dismiss;
and (3) requiring that the parties split visitation costs. Raris v. Greek Corner,
911 P.2d 510, 511 n.5 (Alaska 1996) (holding that when a party fails to cite any
facts or case law in support of an assertion, the argument is waived). It is
insufficient that she simply mentions these rulings in the context of other
3 The superior court did not explicitly find any false or inconsistent
statements by Linda or her witnesses regarding Jeana's discipline. It merely
to cast herself in a good light, all of the people [who] were called and
questioned about it, reached to explain that discipline [is] only time out. There
wasn't an allegation that discipline techniques were inappropriate and, to a
degree, it's understandable that these witnesses and parties try to cast themselves
in a good light.
Thus, it appears that the court discussed this issue as an example of the
tendency to be less than candid about an issue that "is not of critical materiality .
. . [but as a result of which] the Court is left with greater damage from the . . .
effect it has on findings of credibility." The superior court did not clearly err in
making this observation.
We also find that the court did not clearly err in finding that
Linda made false or misleading statements about Robert's presence at home or
his asserted refusal to pay for day care.
4 The superior court found that Linda testified "that she had not had
a drink since her DWI and that she can't drink, as her body rejects alcohol."
The court also found that Linda's sister, Lorraine Pollard "verified that [Linda]
continues to drink occasionally, a couple of wine coolers every couple of
weeks." Our independent review of the record confirms Linda's argument that
the actual testimony is not inconsistent and can be reconciled.
Linda also argues that the superior court erred in finding
that her testimony regarding stalking was inconsistent. The court found that
"[Linda] testified that she feared [Robert] because he was stalking her and that
she left the state because of this stalking. She also testified that the stalking
began only after she said she would leave." Although testimony regarding this
issue was somewhat confusing, Linda's transcribed testimony establishes that the
finding of inconsistency is clearly erroneous.
5 When Linda left Alaska with Jeana in June 1994 she was Jeana's
primary caregiver and violated no court order or custody agreement by taking
Jeana to Massachusetts. Furthermore, Jeana's birth certificate did not list Robert
as the father, nor had he been adjudicated a lawful custodian of Jeana. On the
contrary, Linda asserts that Robert refused to have his name placed on the birth
certificate. To have been guilty of custodial interference, Linda would have had
to have known that she had no legal right to act as she did. The facts militate
against the existence of such knowledge.
6 The decision is also deficient because it did not examine any of the
statutory elements of custodial interference. Its conclusion recited no analysis,
and was not supported with sufficiently detailed and explicit findings. See, e.g.,
Sloan v. Jefferson, 758 P.2d 81, 86 (Alaska 1988) ("A trial court's findings
must be sufficiently detailed and explicit to give an appellate court a clear
understanding of the ground on which the trial court reached its decision.").
7 The record does not support a finding of parental kidnapping. AS
11.41.300 codifies this crime; it is a statutory affirmative defense if the
defendant is a relative of the victim, the victim is under 18 years of age, and the
defendant's primary intention was to assume custody of the victim. AS
11.41.300(b). The most serious allegation against Linda potentially supportable
by the record was that she took Jeana to Massachusetts because she wanted to
get away from Robert and did not want any interference in raising Jeana. Such
actions would not constitute parental kidnapping.
8 In reference to an incident in which Jeana used bad language,
Linda's counsel asked Connie Pugliese whether it was correct that Jeana had
been with her father the month prior to the incident. Pugliese responded that
Jeana had been with her mother. When Linda's counsel responded "Yeah, but
she had been with Bob,"Judge Savell interrupted by stating "Argument,
counsel. Ask your next question."
9 In relevant part, this provision states that "[c]hild support arrearage
may not be modified retroactively, except as allowed by AS 25.27.166(d)."
Alaska R. Civ. P. 90.3(h)(2).