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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. R.I. v C.C. (8/18/00) sp-5308

R.I. v C.C. (8/18/00) sp-5308

     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
                                 


R.I.,                         )
                              )    Supreme Court No. S-9389
             Appellant,       )
                              )    Superior Court No.
     v.                       )    3AN-96-6146 CI
                              )
C.C.,                         )    O P I N I O N
                              )
             Appellee.        )    [No. 5308 - August 18, 2000]
______________________________)



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


          Appearances: R.I., pro se, Anchorage.  Maryann
E. Foley, Alaska Pro Bono Program, Anchorage, for Appellee.


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


          CARPENETI, Justice.


I.   INTRODUCTION
          The superior court awarded custody of Cindy I. to
Constance C., Cindy's mother. [Fn. 1]   Richard I. appeals that
decision, as well as related orders of the superior court.  Because
the superior court did not abuse its discretion in the award of
child custody, and because Richard I.'s arguments on every other
issue either lack merit or pertain to orders that are not properly
before us, we affirm the superior court in all respects.
II.  FACTS AND PROCEEDINGS
     A.   Facts
          Constance C. gave birth to Cindy I. in May 1986.  At the
time, Constance was married to Allan G., [Fn. 2] who was listed as
the father on Cindy's birth certificate.  Constance and Allan later
divorced. 
          In 1991 Richard I. acknowledged his paternity of Cindy 
in writing.  The Child Support Enforcement Division (CSED)
commenced a child support case against Richard in 1992. 
          From her birth until August 1994, Cindy lived with
Constance in Alaska.  Constance then moved to Texas; Cindy stayed
with Richard in Alaska until she went to visit her mother in Texas
in October 1994. 
          Cindy remained with Constance in Texas until early 1995. 
During that time, Constance had difficulty controlling Cindy's
behavior.  Constance asked Richard if he would take care of Cindy. 
Cindy then returned to Alaska to stay with Richard. 
          In May 1995 Richard received orders to undergo training
for the Air National Guard.  He made arrangements to have family
friends care for Cindy until he returned.  Richard returned in
November 1995. 
          While Richard was gone, Cindy was sexually assaulted on
several occasions by one of her caretaker's sons.  Cindy did not
disclose this to any of her adult caretakers and went to live with
a family friend.  When Richard returned to Alaska, Cindy lived with
him.  Because of the changes in living arrangements, Cindy was
enrolled in five schools during the time that she was in the care
of Richard or Richard's friends. 
          Constance returned to Alaska in February 1996 and located
Cindy through Cindy's school.  Cindy split her time between her
parents' residences until school ended in May.  In June Richard
received orders to mobilize for the Big Lake fire, and Cindy lived
with her mother full-time.  Cindy has remained in her mother's care
since then. 
          At least from 1995 to 1997, Cindy suffered from emotional
problems.  In October 1995 she deliberately stepped in front of a
school bus.  In December 1996 she was admitted to Charter North
Hospital following suicidal statements and gestures at school. 
Upon admission, she was hostile and moody; she also expressed
feelings of worthlessness, hopelessness, and suicidal ideation. 
While at the hospital, Cindy disclosed her sexual abuse, after
which her behavior improved.  She did not report any further
suicidal ideation. 
          Cindy was discharged from the hospital in January 1997. 
She then entered therapy to address her extreme anger, 
manipulative behaviors, depression, and eating disorders. 
          B.   Proceedings
          On August 5, 1996, Constance filed a complaint for
custody, requesting sole legal and physical custody of Cindy, with
Richard receiving reasonable visitation.  The complaint also asked,
among other things, that Constance be allowed to apply for Cindy's
permanent fund dividend.  The case was assigned Case No. 3AN-96-
6146 (Case 6146).  On the same day, Constance filed a motion for
interim custody. 
          Shortly after Constance filed her action, Richard filed
a complaint against Constance and CSED.  The case was assigned Case
No. 3AN-96-6307 (Case 6307).  Richard's complaint asked the court
to (1) restrain the defendants from attempting to collect money
from him; (2) order paternity testing; (3) award him physical
custody of Cindy; and (4) order the return of monies that had been
collected from him. 
          In September 1996 Richard filed an answer and
counterclaim to Constance's complaint in Case 6146.  He asserted
counterclaims that were very similar to the claims he asserted in
Case 6307.  In addition, he requested the court to order Constance
to withdraw her application for Cindy's 1996 permanent fund
dividend.  The record contains no indication that Richard opposed
Constance's motion for interim custody. 
          On November 4, 1996, Richard moved the court to
consolidate Case 6146 and Case 6307 because their issues were
"similar in nature."  Superior Court Judge Elaine M. Andrews
granted the motion and assigned the consolidated cases to Superior
Court Judge Michael L. Wolverton. 
          On November 29, 1996, Judge Wolverton awarded interim
custody to Constance, with reasonable visitation to Richard.  The
court also held in abeyance a ruling on child support until the
completion of an investigation and hearing in a collateral
proceeding involving Richard and CSED and dealing with Richard's
child support obligations. [Fn. 3]  
          In December 1996 Richard filed a motion to terminate
Constance's interim custody award.  Constance opposed the motion. 
On March 5, 1997, Judge Wolverton held a hearing on the motion and
denied it.  On the same day, Judge Wolverton appointed the Office
of Public Advocacy (OPA) to act as the guardian ad litem for Cindy. 
          In October 1997 Judge Wolverton dismissed Case 6307 as
moot because Richard had filed an administrative appeal in his
collateral child support case. [Fn. 4]  As Judge Wolverton stated,
the two cases that were consolidated are "therefore no longer
consolidated, the State is no longer a party to this action, and
the case will proceed under case number 3AN 96-6146 regarding any
remaining custody issues until further order of this court."  Judge
Wolverton later denied Richard's request for paternity testing. 
          Trial was held in March 1998.  On June 18, 1998, Judge
Wolverton issued Findings of Fact and Conclusions of Law, in which
he adopted the recommendations of the guardian ad litem and awarded
sole legal and physical custody of Cindy to Constance.  
          On July 27, 1998, Richard filed a late notice of appeal
for both Case 6146 and Case 6307.  In October 1999 Richard filed a
motion for this court to accept his late appeals.  We granted the
motion with respect to Case 6146 but denied it with respect to Case
6307, finding unacceptable the nine-month delay in appealing the
latter case. 
III. STANDARD OF REVIEW
          We will reverse a custody determination only if the trial
court has abused its discretion [Fn. 5] or if "its controlling
findings of fact are clearly erroneous." [Fn. 6]  "A finding of
fact is clearly erroneous only when a review of the record leaves
the court with a definite and firm conviction that the superior
court has made a mistake." [Fn. 7]  An abuse of discretion will be
found "if the superior court considered improper factors in making
its custody determination, failed to consider statutorily mandated
factors, or assigned disproportionate weight to particular factors
while ignoring others." [Fn. 8]  We also review interim orders for
an abuse of discretion. [Fn. 9]
          The other issues in this appeal involve legal questions,
which we review de novo. [Fn. 10]  In doing so, we "adopt the rule
of law that is most persuasive in light of precedent, reason, and
policy." [Fn. 11]
IV.  DISCUSSION
          Richard's main contention is that the superior court
erred in denying him joint custody of Cindy.  He also argues that
the superior court erred in (1) denying him interim custody of
Cindy; (2) awarding Cindy's 1996 permanent fund dividend to
Constance; (3) not ordering paternity testing; and (4) not
modifying his child support order.  We reject each of Richard's
arguments.
     A.   The Superior Court Did Not Abuse Its Discretion in
Awarding Constance Sole Legal and Physical Custody of Cindy.

          Alaska Statute 25.20.060(a) provides that if there is a
dispute over child custody, "[t]he court shall award custody on the
basis of the best interests of the child.  In determining the best
interests of the child, the court shall consider all relevant
factors including those factors enumerated in AS 25.24.150(c)."
[Fn. 12]
          In the instant case, the guardian ad litem provided a
detailed analysis of each of the factors listed in AS 25.24.150(c). 
She concluded that it was in Cindy's best interests to grant
Constance sole legal and physical custody of Cindy. 
          Judge Wolverton adopted the guardian ad litem's
recommendation and awarded Constance sole legal and physical
custody of Cindy.  But in doing so, Judge Wolverton did not merely
adopt the guardian's report.  He independently made findings
regarding the factors listed in AS 25.24.150(c).  For example, he
found that "[Constance] has gone the extra mile in dealing with
school professionals and mental health authorities and others to
take care of the problems [Cindy] is experiencing."  He also found
that "[g]iven the course of events, particular[ly] since the
discovery of the sexual abuse, . . . [Constance] has provided a
stable and satisfactory environment for [Cindy].  It is clearly
desirable to continue that for [Cindy]."  Furthermore, Judge
Wolverton found that "[Cindy] has a problem, in her view, with her
relationship with her father," that Cindy loves her mother but is
conflicted about her relationship with her father, and that Cindy
prefers to live with her mother. [Fn. 13]  All of these findings
are consistent with the guardian ad litem's report. 
          On appeal to this court, Richard does not argue that any
of the superior court's findings of fact were clearly erroneous. 
He also does not argue that the superior court considered improper
factors, failed to consider statutorily-mandated factors, or
assigned any such factors disproportionate weight.  Instead,
Richard argues that the superior court's order was "prejudicial" to
him and that the guardian ad litem made no effort to observe him
interact with Cindy. 
          In child custody proceedings, the best interests of the
child is the paramount consideration. [Fn. 14]  Richard's argument
that the superior court's decision was "prejudicial" to him does
not provide  sufficient grounds for reversing the superior court's
order.
          Our review of the record leads us to conclude that none
of the superior court's controlling findings of fact is clearly
erroneous. [Fn. 15]  The superior court also considered the
statutorily-mandated factors and did not assign any such factor
disproportionate weight. [Fn. 16]  Finally, there is no indication
that the superior court considered improper factors in making its
custody determination. [Fn. 17]  We accordingly hold that the
superior court acted within its discretion in awarding Constance
sole legal and physical custody of Cindy.
     B.   Issues Pertaining to the Interim Custody Order Are Moot. 
     
          Richard argues that the superior court erred in denying
him interim custody of Cindy.  Given that a final award of custody
has been made, Richard would be entitled to no relief even if he
prevailed on this issue.  We therefore hold that issues pertaining
to the interim custody order are moot.
     C.   The Superior Court Did Not Err in Ordering the Department
of Revenue to Hold Cindy's 1996 Permanent Fund Dividend.

          Richard argues that the superior court erred in awarding
Cindy's 1996 permanent fund dividend to Constance, and that the
dividend should have been awarded to him.  Constance responds that
the superior court did not order the Department of Revenue to issue
the dividend to her. 
          The superior court ordered the Department of Revenue "to
hold the Permanent Fund Dividend of [Cindy] . . . until a further
court order is issued as to the disbursement of the minor child's 
Permanent Fund Dividend."  The record does not indicate that the
court ever ordered the dividend to be disbursed to Constance. 
Richard incorrectly asserts that the superior court awarded Cindy's
1996 permanent fund dividend to Constance; the superior court
actually ordered the dividend to be held.  
          It will often be appropriate for a court to order the
Department of Revenue to hold a child's permanent fund dividend
until custody issues pertaining to that child are resolved. 
Because Richard presents us with no reason to conclude that the
superior court erred in doing so here, we affirm the court's order.
[Fn. 18]
     D.   The Superior Court Did Not Err in Denying Richard's
          Request for Paternity Testing.

          The superior court denied Richard's request for paternity
testing, which he made in both Case 6146 and Case 6307.  Richard
argues that the superior court erred in failing to order paternity
testing, suggesting that it is in Cindy's best interests to know
who her biological father is.  Constance argues that the paternity
testing issue is not properly before this court for review.  She
also argues that Richard's requests for paternity testing were
defective and that he did not provide the superior court with
sufficient reasons to order paternity testing.  We hold that the
superior court did not err in denying Richard's request for
paternity testing.
          The version of AS 25.20.050(e) that was in effect when
Case 6146 was filed [Fn. 19] required courts to order paternity
testing in certain actions "in which paternity is contested." [Fn.
20]  Case 6146 is not such a case.  Constance has not alleged that
someone other than Richard is Cindy's biological father; Richard
stated to the superior court that he has not denied his paternity
of Cindy. [Fn. 21]  Because neither party has contested Richard's
paternity of Cindy, this is not a case "in which paternity is
contested."  We accordingly hold that the superior court did not
err in denying Richard's request for paternity testing.
     E.   Issues Pertaining to Richard's Child Support Obligation
Are Not Properly Before Us for Review.

          Richard argues that the superior court erred in refusing
to modify his child support obligation.  Constance counters that
this issue is not properly before us for review. 
          Judge Wolverton found that Richard had pursued the child
support issue in his collateral child support proceeding.  As Judge
Wolverton noted, another superior court judge had dismissed
Richard's administrative appeal regarding Richard's child support
obligations.  Judge Wolverton accordingly did not address the
issues pertaining to child support modification.
          Judge Wolverton did, however, inform Richard that he
could appeal the dismissal of his administrative appeal to this
court.  Richard has done so. [Fn. 22]  In that case, we remanded
the dismissal of Richard's administrative appeal with directions to
reinstate the appeal. [Fn. 23]
          Judge Wolverton therefore did not rule on issues
pertaining to Richard's child support obligations, and they are
being addressed in a separate proceeding before a different judge. 
We hold that these issues are not properly before us for review.
V.   CONCLUSION
          Because the superior court did not abuse its discretion
in awarding sole legal and physical custody of Cindy I. to
Constance C., and because Richard I.'s arguments on every other
issue either lack merit or pertain to orders that are not properly
before us, we AFFIRM the superior court in all respects.


                            FOOTNOTES


Footnote 1:

     In order to ensure anonymity for the persons involved in this
case, we use pseudonyms in the text of this opinion.


Footnote 2:

     See supra note 1.


Footnote 3:

     In this collateral proceeding, the Revenue Hearing Examiner
issued a final administrative decision regarding Richard's child
support obligation, which Richard appealed to the superior court. 
The superior court then dismissed the appeal because Richard filed
a late brief.  See [R.I.] v. State, Dep't of Revenue, Child Support
Enforcement Div., Mem. Op. & J. No. 928, at 2 (Alaska, August 4,
1999).  We remanded the case to the superior court with directions
to reinstate the appeal.  See id. at 4.


Footnote 4:

     For discussion of the these collateral proceedings, see supra
note 3. 


Footnote 5:

     See Todd v. Todd, 989 P.2d 141, 142-43 (Alaska 1999) (quoting
J.W. v. R.J., 951 P.2d 1206, 1209 (Alaska 1998)).


Footnote 6:

     Borchgrevink v. Borchgrevink, 941 P.2d 132, 134 (Alaska 1997)
(citation omitted).


Footnote 7:

     Id. (citation omitted).


Footnote 8:

     Id. (citation omitted).


Footnote 9:

     See Virgin v. Virgin, 990 P.2d 1040, 1043 (Alaska 1999)
(citations omitted).


Footnote 10:

     See State, Dep't of Revenue, Child Support Enforcement Div. v.
Kovac, 984 P.2d 1109, 1111 (Alaska 1999) (citation omitted).


Footnote 11:

     Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).


Footnote 12:

     AS 25.24.150(c) provides:

          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 13:

     When the guardian ad litem made her recommendations, Cindy was
almost twelve years old.  Judge Wolverton found that Cindy "is of
an age that her preference should be taken into consideration by
the court." 


Footnote 14:

     See I.J.D. v. D.R.D., 961 P.2d 425, 431 (Alaska 1998) (quoting
Craig v. McBride, 639 P.2d 303, 306 (Alaska 1982)).


Footnote 15:

     See Borchgrevink v. Borchgrevink, 941 P.2d 132, 134 (Alaska
1997) (citation omitted).


Footnote 16:

     See id. (citation omitted).


Footnote 17:

     See id. (citation omitted).


Footnote 18:

     We note that the record does not indicate whether the 
permanent fund dividend was ever disbursed.  Because Constance has
been granted sole legal and physical custody of Cindy, she may wish
to petition the superior court to order the disbursement of the
dividend to her.


Footnote 19:

     Because we denied Richard's untimely appeal of Case 6307,  we
address only the paternity testing issues raised in Case 6146.


Footnote 20:

     Former AS 25.20.050(e) (1996).  The current version of AS
25.20.050(e) also requires courts to order paternity testing in
certain "proceedings in which paternity is contested."


Footnote 21:

     Richard's major reason for seeking paternity testing appears
to be to confirm that he is Cindy's biological father, not to prove
that he is not her biological father. 


Footnote 22:

     See [R.I.] v. State, Dep't of Revenue, Child Support
Enforcement Div., Mem. Op. & J. No. 928 (Alaska, August 4, 1999).


Footnote 23:

     See id. at 4.