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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Crane v. Crane (9/10/99) sp-5173

Crane v. Crane (9/10/99) sp-5173

     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, phone
(907) 264-0608, fax (907) 264-0878.



             THE SUPREME COURT OF THE STATE OF ALASKA
                                 


JAMES A. CRANE,               )
                              )    Supreme Court No. S-8538
             Appellant,       )
                              )    Superior Court No.
     v.                       )    3AN-96-7547 CI
                              )
LOGAN P. CRANE,               )    O P I N I O N
                              )
             Appellee.        )    [No. 5173 - September 10, 1999]
______________________________)



          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                      Karen L. Hunt, Judge.


          Appearances: Stephen F. McKee, Anchorage, for
Appellant.  Robert C. Erwin, Law Offices of Robert C. Erwin,
Anchorage, for Appellee.


          Before:   Matthews, Chief Justice, Eastaugh,
Fabe, Bryner, and Carpeneti, Justices.  


          CARPENETI, Justice.


I. INTRODUCTION 
          This appeal arises from the incorporation of a custody
and support agreement into a divorce decree.  The agreement
provided for joint legal and physical custody of the couple's two
minor children.  The father moved to set aside the agreement, which
the court denied.  On appeal, the father contends the court erred
by failing to conduct a "best interests of the children"analysis
and by failing to make specific findings on this issue.  In
addition, the father claims that the superior court erroneously
found that he voluntarily entered into the agreement.  Because we
conclude that the superior court did not err in finding that the
agreement met the best interests of the children and in finding
that the father voluntarily entered into the agreement, we affirm.
II.  FACTS AND PROCEEDINGS
          James Crane and Dr. Logan Porter Crane married in June
1990 and moved to Kodiak the same year.  They have two children,
M.A.C., born August 1992, and E.H.C., born July 1994.  The Cranes'
marriage had numerous problems, and the couple separated in January
1994 for the third and last time.  Mr. Crane filed for divorce in
October of that year and sought joint legal and shared physical
custody of both children.  Dr. Crane counterclaimed and sought sole
legal and physical custody of the children.  
          Following extensive motion practice and evaluations by
a custody investigator and psychologist, a trial was set for
December 1, 1997.  A mandatory settlement conference was held
November 24, 1997.  The superior court conducted the conference,
which lasted for three days, and it culminated in an agreement
providing for joint legal and physical custody of the children.
[Fn. 1]   The agreement was signed and acknowledged in open court
during a hearing on November 26.  The court ordered the agreement
incorporated into the divorce decree, which it simultaneously
granted.
          Mr. Crane moved to vacate the child custody agreement and
order under Alaska Rule of Civil Procedure 60(b) in January 1998. 
He asserted that he had entered into the agreement based upon the
advice of his attorney, who had been medically determined to be
disabled from the practice of law a week before the conference. 
Mr. Crane stated that he was not informed of this fact until early
December. [Fn. 2]  Mr. Crane further alleged that his counsel's
representations had compelled him to accept a settlement which was
not in the best interests of the children; his acceptance was
therefore not voluntary.  Specifically, Mr. Crane asserted that his
attorney erroneously advised him that because he had contact with
the custody investigator prior to the settlement conference, the
trial court would not allow the custody investigator to testify. 
As a result, he would lose his custody rights if he did not agree
to a settlement. [Fn. 3]  The court denied Mr. Crane's motion. 
          Mr. Crane then objected to Dr. Crane's proposed partial
findings of fact and conclusions of law.  Specifically, Mr. Crane
objected to a paragraph that stated that the child custody and
support agreement was in the best interests of the minor children,
was entered into voluntarily without duress, and was entered into
with the assistance of counsel.  On February 24, the court entered
the proposed partial findings of fact and conclusions of law,
including the disputed paragraph, as well as a divorce decree. 
This appeal followed.
III. DISCUSSION
          Mr. Crane makes three main arguments.  First, he asserts
that the trial court abused its discretion by accepting the
parties' agreement without conducting an inquiry into the best
interests of the children or making the necessary findings. 
Alternatively, he argues that the court's conclusory finding that
the custody agreement was in the best interests of the children was
not supported by the evidence.  Finally, Mr. Crane contends that
the trial court erred in finding that he entered into the custody
support agreement voluntarily and with the assistance of counsel. 
Dr. Crane responds that a custody settlement need not meet the same
"best interests of the children"standard as required in contested
custody decisions because it contractually binds the parties, and
the superior court met this lower "contractual principles"
standard.
          We turn first to the basic requirements of child custody
agreements.  Next we consider the validity of the agreement in this
case in light of the contract defenses raised against it.  Finally,
we discuss the sufficiency of the trial court's findings concerning
the best interests of the children.
     A.   A Child Custody Agreement Must Satisfy General Contract
Principles.

          Courts will treat settlement agreements as contracts
provided they meet minimal contractual requirements. [Fn. 4]  "The
formation of a valid contract requires an offer encompassing all
essential terms, unequivocal acceptance by the offeree,
consideration, and an intent to be bound."[Fn. 5]   When a
stipulation is admitted by both parties or their attorneys in open
court and there is no dispute as to the material terms of the
settlement, the stipulation is enforceable between the parties
absent fraud, duress, or concealment of other facts showing the
agreement was not made voluntarily and with full understanding.
[Fn. 6]  However, when the subject matter of the agreement is child
custody, the agreement must also meet the best interests of the
children. [Fn. 7]
          The Cranes reached an agreement with definite terms after
three days of settlement negotiations.  They said, in regard to
that agreement:
               Each party acknowledges that although he
or she would prefer sole legal and physical custody, it is in the
best interest of the children to enter this agreement voluntarily
and he or she has done so without duress or undue influence.  Each
believes that under the applicable law and the facts and
circumstances of this case, this agreement is in the best interests
of the children.[ [Fn. 8]]

They placed the terms of the agreement on the record at a hearing. 
Because both parties accepted this agreement with definite terms in
open court, it is enforceable between the parties absent a
contractual defense and as long as it meets the best interests of
the children. 
     B.   The Superior Court Did Not Err in Finding that Mr. Crane
Entered the Custody and Support Agreement Voluntarily and with the
Assistance of Counsel.
          
          Mr. Crane claims he entered into the agreement under
duress and coercion, without the effective assistance of counsel,
and that the superior court's finding that Mr. Crane entered into
the agreement voluntarily and with the assistance of counsel is not
supported by the record and is clearly erroneous. [Fn. 9]  His
basis for this contention is two-fold.  First, Mr. Crane contends
that he did not orally confirm that he entered into the agreement
"voluntarily"at the hearing to put the settlement on the record,
and subsequently informed the court he had not entered into it
voluntarily in his motion to vacate the agreement.  Second, he
argues he was under duress and coerced into agreeing to the
settlement.  This is so, he argues, because he was incorrectly
advised -- by an attorney who had been recently diagnosed as
disabled from the practice of law -- that if he did not accept the
settlement he would likely lose custody.  These arguments lack
merit.
          First, Mr. Crane did not need to explicitly state that
he entered into the agreement "voluntarily"for the court to find
he did so.  Mr. Crane had the assistance of two attorneys during
the negotiations and it appears that he understood what he agreed
to.  The following exchange occurred: 
          Q.   Mr. Crane, you have in front of you or I
have placed in front of you a child custody and support agreement. 
Have you read through that agreement carefully?
          A.   Yes.
          Q.   And have some changes been made at your
suggestion?
          A.   Yes.
          Q.   And although I understand that this is
not entirely what you would've preferred, do you understand the
import of all the contents of this agreement?
          A.   Yes.
          Q.   And are you willing to abide by the
contents of this agreement?
          A.   Yes.
          Q.   And have you signed this yourself on the
copy before the court?
          A.   Yes.

This exchange reveals that Mr. Crane entered into the agreement
knowingly and willingly.  Therefore, his failure to explicitly
confirm that his consent was voluntary does not render the
agreement involuntary.  Likewise, that he had changed his mind by
January (when he argued that his November action was not taken
voluntarily) is not relevant to his state of mind in November, when
he agreed to shared custody.  
          Similarly, Mr. Crane's claim that he agreed to the
settlement under duress and coercion as a result of bad advice from
his "incapacitated"counsel lacks merit.  At the settlement
conference Mr. Crane was represented by two lawyers, Elizabeth
"Pat"Kennedy and Michael Gershel.  At some time in the past, Ms.
Kennedy had been diagnosed with fibromyalgia.  On November 17,
1997, she was medically determined to be disabled from the practice
of law.  There is dispute as to the extent of Mr. Crane's knowledge 
of Ms. Kennedy's illness prior to the conference.  Mr. Crane
contends that although he had been aware of Ms. Kennedy's health
problems during the two years preceding the final custody
negotiations, he did not realize that she was "totally and
permanently disabled from the practice of law." Ms. Kennedy
characterized her disability as "unable to continue practicing as
a full time lawyer." In her affidavit she stated that Mr. Crane
was aware of her diagnosis of fibromyalgia and some of the problems
associated with it, and that he approved of the hiring of Mr.
Gershel as "second chair"for the trial. 
          As a preliminary note, according to Ms. Kennedy, her
fibromyalgia is episodic and Mr. Crane offered no evidence Ms.
Kennedy was suffering an attack at the time of negotiations.  She
affied that she was not.  In fact, while Ms. Kennedy had been
seeking a diagnosis and treatment for periodic fatigue, depression,
aches, and other flu-like symptoms for several years prior to the
settlement conference, the record indicates that she worked
aggressively and competently on behalf of Mr. Crane.  
          In addition, Mr. Crane had the benefit of another
attorney's assistance in this case.  While Mr. Crane contends that
Mr. Gershel was brought in for motion practice only, and that he
relied solely on Ms. Kennedy's advice and counsel with regard to
custody, both the specific terms of the settlement and the record
of proceedings belie this claim.  As to the settlement agreement,
the parties stated: "Each party acknowledges that he or she has
consulted with both of his or her attorneys regarding the effects
of this agreement, consents to the same, and understands the
consequences thereof."[Fn. 10]  Significantly, both Ms. Kennedy
and Mr. Gershel signed the agreement as counsel for Mr. Crane.   
          As to the record of proceedings, it indicates Mr. Gershel
was present during the negotiations and was well aware of child
custody and support issues.  He drafted motions and supporting
memoranda on Mr. Crane's behalf regarding child support, Dr.
Crane's alleged interference with his visitation, opposition to Dr.
Crane's motion to sanction the custody investigator, and to exclude
testimony from Dr. Smith and another psychologist regarding the
best interests of the children.  Mr. Gershel was well-versed in the
facts and legal arguments regarding custody, and was present
throughout the negotiations.  Therefore, assuming for the sake of
argument that Ms. Kennedy was incapacitated, since Mr. Gershel was
available and competent to give Mr. Crane legal advice, Mr. Crane
could not have suffered from inadequate counsel.
          Finally, Mr. Crane argues that as a result of Ms.
Kennedy's advice he entered into the agreement under duress and
coercion.  However, the fear of losing custody of one's children in
a custody dispute does not, standing alone, constitute duress. 
Duress generally requires a threat that arouses such fear as to
preclude a party from exercising free will and judgment, or "it
must be such as would induce assent on the part of a brave person
or a person of ordinary firmness."[Fn. 11]  Coercion, though not
synonymous with duress, is similar and implies compulsion or
constraint. [Fn. 12]  As the Illinois Court of Appeals aptly noted,
a party's fear of losing custody of his or her children no doubt
causes anxiety; however this will not be recognized "as a factor
impairing [one's] . . . ability to exercise [one's] . . . free will
and make a meaningful choice when the record reflects that [the
party] agreed to negotiations, took part in the negotiations, and
then presented the substance of these negotiations, under oath, to
the trial court."[Fn. 13]   
          In sum, Mr. Crane appears to have actively participated
in the settlement conference with the assistance of two attorneys. 
He helped craft its terms, he knew its contents, and he voluntarily
agreed to abide by it under oath in open court.  Mr. Crane has not
shown that the superior court's finding was clearly erroneous. 
Accordingly, we hold that the custody and support agreement is
binding between the parties. [Fn. 14]
     C.   The Superior Court Did Not Err in Finding that the
Custody Agreement Met the Best Interests of the Children.
     
          In making any custody determination -- whether following
a contested trial or upon the parties' agreement -- the superior
court must base its decision on the best interests of the child.
[Fn. 15]  In this case, the superior court did make findings of
fact which addressed the best interests of the children.  At the
November 26, 1997 hearing to put the Child Custody and Support
Agreement on the record, the court announced its finding that:
          The child custody, support and visitation
agreement between the parties is in the best interests of the
children and is incorporated into the divorce decree as if fully
set forth.

The court's written findings and conclusions reflected its earlier
statements on the record.  The court found: 
               [T]he parties, with the assistance of
counsel, have entered into a Child Custody & Support Agreement
which the parties aver is in the best interests of the two minor
children . . . .
               [T]he court is familiar with the Child
Custody & Support Agreement and the legal and factual issues
underlying same and finds this agreement to be in the best
interests of the minor children, and fair and equitable to the
parties.[ [Fn. 16]]

The court entered a matching conclusion of law, and incorporated
this statement into the Decree of Divorce.  In the particular
circumstances of this case, these findings and conclusions were
sufficient.  
          Mr. Crane argues that the superior court's findings were
insufficient because the court did not address individually each of
the statutory factors. [Fn. 17]  This position ignores several
critical facts: that Mr. Crane voluntarily entered into the child
custody agreement; that he did so with the benefit of counsel; that
the agreement was approved by a superior court judge who had just
conducted a settlement conference on custody issues for three days;
and that the legal custodial status chosen by the parties, joint
legal custody, has been recognized by the Alaska Legislature as the
preferred custodial status when marriages end. [Fn. 18]  No Alaska
case supports the result urged by Mr. Crane, and we decline to
order it.
          In making a best interests finding, the trial court may
properly rely on the entire record before it.  This includes the
case file, settlement proceedings occurring before the court, and
the parties' and counsels' representations when the agreement is
put on the record.   
          A trial court properly conducts a less searching best
interests analysis in approving a custody settlement than in making
a custody determination in a contested action. [Fn. 19]  In 1982,
the state legislature, while amending the child custody statutes,
specified the legislature's intent that "it is in the best
interests of a child to encourage parents to implement their own
child care agreements outside of the court setting."[Fn. 20]  In
addition, a custody agreement that is voluntarily reached may
evince each parent's desire and ability to "allow an open and
loving . . . relationship between the child and other parent,"[Fn.
21] one of the statutory factors the court must consider in
awarding custody.  The fact of settlement is therefore pertinent
because it demonstrates that "cooperation between the parents is
possible,"[Fn. 22] which is "essential if joint custody is to be
in the best interests of the child."[Fn. 23]  Finally, the
dynamics of settlement are such that the level of judicial scrutiny
advocated (in hindsight) by Mr. Crane would likely have a
counterproductive effect: it would discourage settlement and defeat
settlement efforts.  
          This last factor is of great concern in a system where
litigation is both expensive and, in the context of child custody
disputes, emotionally debilitating.  Disputes over custody can have
far-reaching effects, further harming and in some instances
completely poisoning the relationship between the parents and
thereby negatively affecting their children well into adulthood. 
The legislature recognized these effects when it found that it is
in the best interests of children to have their own parents fashion 
custody agreements rather than have courts impose custodial regimes
upon them.
          We do not suggest that there is never recourse for a
parent who seeks to withdraw from a custody agreement.  But a
parent's mere change of mind is insufficient.  Rather, if
circumstances have changed from the time the agreement was entered,
[Fn. 24] or the assumptions underlying the agreement have proven
unfounded, [Fn. 25] or the agreement was procured by fraud or
duress, [Fn. 26] or in similar circumstances, a parent may move to
withdraw.  In such a case, the trial court would have the duty to
inquire and to make specific findings in support of its resolution
of the matter.  By the same token, a trial court presented with an
agreement which raises questions in the court's mind as to whether
the agreement serves the best interests of the children [Fn. 27]
has the discretion to inquire further before making a finding that
the agreement is in the best interests of the children.  But none
of those circumstances applies here.  In the circumstances of this
case, the trial court's findings were sufficient.
IV.  CONCLUSION
          Because the Cranes' child custody agreement met the
requirements of a contract, because Mr. Crane entered into it
voluntarily and with the assistance of counsel, and because the
superior court did not err in finding that the agreement served the
best interests of the Crane children, we AFFIRM.                                 


                            FOOTNOTES


Footnote 1:

     Under the terms of the agreement, the children would spend
four days a week with Dr. Crane and three days a week with Mr.
Crane until August 15, 2000, when the children are six and seven
years old.  (This is similar to the interim custody order.)  From
2000 to 2006, custody would alternate weekly; for 2006 to 2007
custody would alternate every two weeks; thereafter custody would
alternate every four weeks, with weekend visitation for the non-
custodial parent on the first and third weekend of each four-week
period. 


Footnote 2:

     The trial on property division occurred on December 2 and 3,
1997.  On December 9, Mr. Crane replaced his counsel and filed a
motion for a new trial based on his previous attorney's diagnosis
of fibromyalgia.   Mr. Crane also moved for an evidentiary hearing. 
On December 18, the court denied Mr. Crane's motion for a new
trial,  as well as his motion to reconsider the denial, and found
the  motion for an evidentiary hearing to be moot.


Footnote 3:

     Mr. Crane affied that his counsel informed him that the court
was not going to allow the custody investigator to testify, and
that his custody case was "out the window"and "completely
compromised."


Footnote 4:

     See Gaston v. Gaston, 954 P.2d 572, 574 (Alaska 1998);    
Davis v. Dykman, 938 P.2d 1002, 1006 (Alaska 1997).


Footnote 5:

     Davis, 938 P.2d at 1006.


Footnote 6:

     See Murphy v. Murphy, 812 P.2d 960, 965 (Alaska 1991) (citing
Kerslake v. Kerslake, 609 P.2d 559, 560 (Alaska 1980); Interior
Credit Bureau, Inc. v. Bussing, 559 P.2d 104, 106-07 (Alaska
1979)).


Footnote 7:

     See McClain v. McClain, 716 P.2d 381, 385 (Alaska 1986).


Footnote 8:

     Child Custody and Support Agreement, III.B.       


Footnote 9:

     The superior court's factual findings are reviewed under the
clearly erroneous standard.  See Alaska R. Civ. P. 52(a); McGee v.
McGee, 974 P.2d 983, 987 (Alaska 1999).  The superior court's
approval of a settlement stipulation is reviewed under the clear
abuse of discretion standard.  See Barber v. Barber, 837 P.2d 714,
716 n.2 (Alaska 1992) (citations omitted).


Footnote 10:

     Child Custody and Support Agreement, III.B. (emphasis added). 



Footnote 11:

     25 Am. Jur. 2d Duress and Undue Influence sec. 1 (1996).


Footnote 12:

     See Black's Law Dictionary 258 (6th ed. 1990).


Footnote 13:

     Marriage of Steadman, 670 N.E.2d 1146, 1151-52 (Ill. App.
1996).  While the negotiations in the case at bar were mandatory,
and Mr. Crane only indicated he knew the agreement's terms rather
than reciting their substance, the rationale of Steadman still
applies here.  Mr. Crane participated in the settlement
negotiations and knew failure to reach agreement would result in
trial, as occurred with the property settlement.  His active
participation in the negotiations and review of its terms, as
evinced by his initials at the bottom of each page, strongly
indicate he knew the settlement's terms. 


Footnote 14:

     In his reply brief, for the first time, Mr. Crane raises a
separate argument concerning voluntariness.  He argues that the
trial court improperly conducted the mandatory settlement
conference because the same judge would preside over trial if the
conference were unsuccessful, and that his assent was therefore
coerced.  Mr. Crane concedes that "the issue of whether judges
designated to try cases should be judges who also conduct mandatory
settlement negotiations is not directly before [this court] at this
time." The concession is well taken, as we will not consider
issues raised for the first time in a reply brief.  See Alaska R.
App. P. 212(c)(3); McGee v. McGee 974 P.2d 983, 989 (Alaska 1999);
Petersen v. Mutual Life Ins. Co., 803 P.2d 406, 411 n.8 (Alaska
1990) (argument waived because appellant failed to "advance any
legal argument as to why the court erred"in main brief).  As to
coercion, we find no objective evidence in the record to support
the claim.  We express no opinion as to the propriety of mandatory
settlement conferences presided over by the judge who will conduct
the trial if the conference is unsuccessful.


Footnote 15:

     See Hakas v. Bergenthal, 843 P.2d 642, 644 (Alaska 1992) (best
interests inquiry is essential component of custody
determinations); Lone Wolf v. Lone Wolf, 741 P.2d 1187, 1190
(Alaska 1987) (court must review parties' agreement under best
interests standard) (citing McClain v. McClain, 716 P.2d 381, 385-
86 (Alaska 1986)).


Footnote 16:

     Partial Findings of Fact and Conclusions of Law, Feb. 24,
1998.


Footnote 17:

     AS 25.24.150(c) provides:

          (c) 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 these needs;
               (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.


Footnote 18:

     See An Act Relating to Child Custody, ch. 88, sec. 1(a), SLA
1982:

               The legislature finds that it is
generally desirable to assure a minor child frequent and continuing
contact with both parents after the parents have separated or
dissolved their marriage and that it is in the public interest to
encourage to share the rights and responsibilities of child
rearing.  While actual physical custody may not be practical or
appropriate in all cases, it is the intent of the legislature that
both parents have the opportunity to guide and nurture their child
and to meet the needs of the child on an equal footing beyond the
considerations of support or actual custody.

As we held in Bell v. Bell, 794 P.2d 97, 99 (Alaska 1990),
legislative intent "favors joint legal custody, regardless of the
physical custody arrangement."


Footnote 19:

     See Gaston v. Gaston, 954 P.2d 572, 573 (Alaska 1998).


Footnote 20:

     Ch. 88, sec. 1(b), SLA 1982. 


Footnote 21:

     AS 25.24.150(c)(6).


Footnote 22:

     McClain v. McClain, 716 P.2d 381, 385 (Alaska 1986).


Footnote 23:

     Id. at 386; see also Smith v. Smith, 673 P.2d 282, 283 (Alaska
1983).


Footnote 24:

     See Garding v. Garding, 767 P.2d 183, 185 (Alaska 1989)
(changed circumstances doctrine applies to modifications of
stipulated child custody arrangements in effect for a significant
period of time).


Footnote 25:

     See Schofield v. Schofield, 777 P.2d 197, 202 (Alaska 1989).


Footnote 26:

     See Dewey v. Dewey, 886 P.2d 623, 625-26 (Alaska 1994).


Footnote 27:

     A trial judge might well inquire further in any of a number
of "red flag"situations.  One group of such cases includes the
"heightened scrutiny"cases already recognized by the legislature
in dissolutions where the statutory factors are applicable, that
is, where one party is represented by counsel and the other is not,
or where there has been a history of domestic violence.  See AS
25.24.220(h).  Another group would include situations where the
agreement calls for unusual and unexplained provisions, for
example, limiting the children in their telephone contact with a
non-custodial parent, or prohibiting the children's access to
counselors, or the like.