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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Elliott v Settje (07/27/2001) sp-5439

Elliott v Settje (07/27/2001) sp-5439

     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
                                 


TRENE ELLIOTT,                )
                              )    Supreme Court No. S-9688
             Appellant,       )
                              )    Superior Court No.
     v.                       )    1KE-99-76 CI
                              )
RONALD L. SETTJE,             )    O P I N I O N
                              )
             Appellee.        )    [No. 5439 - July 27, 2001]
______________________________)



          Appeal from the Superior Court of the State of
Alaska, First Judicial District, Ketchikan,
                     Thomas M. Jahnke, Judge.


          Appearances: W. Clark Stump, Stump & Stump,
          Ketchikan, and Joshua Rosen, Attorney at Law,
Los Angeles, for Appellant.  Michael W. Holman, Holman & Schulz,
Ketchikan, for Appellee.


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


          CARPENETI, Justice.


I.   INTRODUCTION
          Trene Elliott appeals the superior court's ruling to
grant Ronald Settje joint physical custody of their two-year-old
daughter Kessa according to a schedule that alternates custody
every two to three days.  Because the trial court did not abuse its
discretion in awarding joint physical custody or in devising a
custody schedule to minimize the time Kessa is separated from each
parent, we affirm.
II.  FACTS AND PROCEEDINGS
          Kessa Elliott is the daughter of Trene Elliott and Ronald
Settje.  Kessa was born on February 5, 1999.  She is a happy and
well-adjusted child, described by the guardian ad litem as a "very
happy little girl": "wanting to do whatever she can," playing well
with her step-brothers and cousins, and "[a]lways giving kisses
when asked." 
          Elliott and Settje were never married to each other. 
Both Elliott and Settje work for the City of Ketchikan.  When their
relationship began, Settje supervised Elliott. 
          Prior to Settje's relationship with Elliott, he had an
eight-year live-in relationship with Nora Bain.  At some point,
Settje and Bain worked out their differences.  They married in
November 1998. 
          In March 1999 Settje filed this action for paternity
testing and shared custody.  Once paternity was proven, Settje
began visitation with Kessa under Elliott's supervision.  Because
Elliott would not allow Settje to have unsupervised visitation, 
Settje moved for an interim visitation order.  Superior Court Judge
Thomas M. Jahnke granted Settje's motion for eleven hours of
unsupervised visitation per week.  Several months later, Settje
moved to expand the interim visitation order because Elliott would
not allow Kessa to stay overnight in his home.  Again, Judge Jahnke
granted Settje's motion for overnight visitation on alternate
weekends. 
          Judge Jahnke also granted Elliott's unopposed motion to 
appoint a guardian ad litem (GAL).  The GAL's report noted the
parties' differing preferences for visitation as of March 2000. 
Although complying with the court order, Elliott still opposed
overnight visits, believing Kessa to be too young.  Elliott,
however, did indicate that the court-ordered overnight visitation
"seemed to be going pretty good" at the time of the GAL's
investigation.  Settje generally liked the visitation schedule but
wanted to add another overnight visit and to be able to pick up
Kessa directly from daycare for his weekday visits to reduce the
amount of travel time during his visitation hours.  The GAL
recommended extending Settje's visitation according to his two
requests and leaving "actual physical custody" with Elliott. 
          After trial in April 2000, Judge Jahnke found that both
Elliott and Settje were "excellent parents" who "appear to be able
to work toward a relationship that will allow each to foster an
open and loving frequent relationship between Kessa and the other
parent."  He concluded that an ultimate goal of equal custody
should be achieved at some point. 
          Judge Jahnke weighed the custody factors of AS
25.24.150(c) and determined that Elliott had a slight advantage due
to her role as Kessa's primary care giver up to this point but that
Settje would "catch up quickly."  He also recognized an additional
significant factor -- Kessa's very young age and "the opportunity
to build strong bonds with each parent if reasonable custodial
periods with each parent [could] be assured."  Judge Jahnke agreed
with Elliott that any lengthy separation from her was not advisable
but noted that he was unaware of any research showing harm in
short-term separations.  He devised a custody schedule "to balance
the need for meaningful contact with each parent while avoiding any
anxiety on the part of the child that the other parent has
abandoned her."  
          The schedule reached equal physical custody in two steps. 
For the remainder of 2000, the schedule changed custody every two
to three days, increased Settje's time with Kessa from thirty-nine
hours every two weeks to six days every two weeks, and provided
that Kessa would be separated from Elliott no more than forty-eight
hours at a time and from Settje no more than seventy-two hours at
a time.  The second step achieved equal custody starting in 2001
and provided that Kessa be separated from either parent for no more
than seventy-two hours at a time.  Judge Jahnke further noted that
the parties could agree to less frequent changes in custody as
Kessa grew older. 
          Elliott appeals the superior court's custody schedule as
an abuse of discretion.  She does not contest the superior court's
factual findings. 




III. STANDARD OF REVIEW
          The trial court has broad discretion to determine child
custody issues. [Fn. 1]  We review a trial court's resolution of
custody issues for abuse of discretion. [Fn. 2]  "Abuse of
discretion is established if the trial court considered improper
factors or failed to consider statutorily-mandated factors, or
improperly weighted certain factors in making its determination."
[Fn. 3]
IV.  DISCUSSION
          Elliott argues that the superior court abused its
discretion in two ways: by granting joint physical custody and by
imposing a custody schedule that minimizes the time Kessa is
separated from each parent but requires frequent exchanges of
custody. 
     A.   The Superior Court Did Not Abuse Its Discretion by
Granting Joint Physical Custody.
     
          Elliott argues that the custody factors should favor
awarding her primary physical custody.  She contends that the
superior court abused its discretion by not making the "stability
and continuity" factor decisive in this case where the other
factors were relatively balanced.  She also contends that the
superior court abused its discretion in failing to give the GAL's
report sufficient weight. 
          1.   The "stability and continuity" factor
          Elliott contends that the "stability and continuity"
factor has special weight to "tip the balance" when the other
factors are relatively equal.  Settje responds that the case law
does not support Elliott's contention and that the factors favored
granting joint physical custody. 
          Alaska Statute 25.24.150(c) lists the factors that the
court must consider in determining the best interests of a child.
[Fn. 4]  The "stability and continuity" factor focuses on "the
length of time the child has lived in a stable, satisfactory
environment and the desirability of maintaining continuity." [Fn.
5]  In analyzing the "stability and continuity" factor, we have
approved of two approaches: an assessment of the parents' relative
stability, and a broader inquiry of the children's more general
need for stability in their overall living environment. [Fn. 6]  As
then-Chief Justice Rabinowitz noted, "[s]tability is often a
function of parental attitude." [Fn. 7]  We have also noted that
the "stability and continuity" factor does not automatically give
a custodial preference to the primary care giver. [Fn. 8]
          Elliott cites Evans v. Evans [Fn. 9] and Vachon v.
Pugliese [Fn. 10] to support her contention that the "stability and
continuity" factor has some special weight when the other factors
are equally balanced.  But Evans's holding does not go so far, and
both cases are factually distinct from the instant case.  Evans
concluded only that the trial court did not abuse its discretion
when it found the statutory factors closely balanced but granted
physical custody to the father because the children would have the
additional stability of remaining in the familial home and of
avoiding the potential stress of adjusting to a family situation
with two other children. [Fn. 11]  We noted that the trial court's
decision appeared "to have been based on case-specific evidence
demonstrating [the children's] actual need for physical and
emotional continuity and stability in their overall living
situation." [Fn. 12]  Our decision in Evans allowed the trial court
substantial discretion to analyze the stability and continuity
factor and other non-statutory factors related to stability, but it
did not require giving the stability and continuity factor special
weight when the other factors are equal. [Fn. 13]
          In addition, Evans is factually distinguishable because
of the age of the children and the evidence of their "actual need
for physical and emotional continuity and stability." [Fn. 14]  The
Evans children were seven and twelve years old, and parental
bonding was not mentioned as a concern. [Fn. 15]  Here, Kessa is
only two years old, and the court expressly noted the concern of
allowing her to bond with each parent.  And in Evans, the custody
investigator and a school counselor gave testimony of the
children's actual need for physical and emotional security. [Fn.
16]  Here, the GAL made no express comment about Kessa's actual
need for stability. 
          Similarly, Vachon is too factually disparate to be
applicable here.  Elliott's admission that Vachon is "somewhat
factually inapposite" is an understatement.  In Vachon, the mother
moved from Alaska to Massachusetts with her child without notifying
the father. [Fn. 17]  Custody investigators in both states
recommended "that, in the interests of continuity and stability,
[the child] should remain with [the mother]." [Fn. 18]  The trial
court awarded primary physical custody to the father based on its
findings that the mother's actions constituted custodial
interference.  We reversed because the mother's actions did not
amount to custodial interference and because the trial court
rejected the opinion of two custody investigators. [Fn. 19]
          None of these critical facts is present in this case. 
Here, both parents reside in Ketchikan, and there was no allegation
of custodial interference.  Also, the GAL made no special
recommendation in the interest of continuity and stability. 
Finally, the trial court did not award Settje primary physical
custody; it only decided to award joint physical custody.  Because
the cases are so factually disparate, Vachon is inapplicable.
          In an attempt to make Vachon seem closer factually,
Elliott speculates that the superior court was punishing her
because she had an advantage in the two statutory factors
concerning Kessa's physical, emotional, mental, religious, and
social needs by being her primary care giver and because Elliott's
mother argued with Settje during a pretrial visitation exchange. 
While Elliott is correct that punishment is not an appropriate
consideration in making child custody determinations, [Fn. 20] she
presents no evidence to substantiate her allegations.  Regarding
the trial court's mention of Elliott's "head start" in caring for
Kessa, the court stated,
          The first two statutory factors, concerning
the physical, emotional, mental, religious, and social needs of the
child, currently favor Trene Elliott by reason of the fact that she
has gotten a head start on care giving during the pendency of this
case.  It is clear that Ron Settje will catch up quickly,
especially with the capable and loving assistance of his new wife. 

With this language, the trial court merely explained why these
factors slightly favored Elliott; the court in no way implied that
it was punishing Elliott.  Regarding the trial court's negative
comment on the argument between Elliott's mother and Settje, the
court stated that Elliott's mother "thr[e]w gasoline on the fire"
but immediately followed with "I know she didn't mean it."  The
court then noted that Settje shared the blame, stating that "it
wouldn't surprise me if [Settje] did over-react, notwithstanding
his testimony to the contrary."  In context, Judge Jahnke's
comments are even-handed and appeared to be trying to dispel any
remaining ill will resulting from the encounter between Elliott's
mother and Settje.
          Also, an equal sharing of custody for two equally fit
parents can hardly be construed as punishment.  If the trial court
had changed primary physical custody from Elliott to Settje without
other justification, that fact would better support the argument
that the court's ruling was a punishment.  But that did not happen. 
Here, the superior court found that both parents were excellent and
could work together to raise the child.  Its decision to grant
joint physical custody was not an abuse of discretion.
          2.   The guardian ad litem's report and testimony
          Elliott also argues that the superior court ignored the
GAL's report and contends that a GAL's recommendation should not be
lightly ignored.  Settje responds that the trial court's decision
was consistent with the GAL's testimony at trial. 
          "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."
[Fn. 21]  A GAL's recommendation may support a trial court's
custody decision, [Fn. 22] and the undisputed opinions of two
independent custody investigators may be given additional weight in
some cases. [Fn. 23]  In this case, although the trial judge did
not adopt the GAL's recommendation, the judge's ruling was not
inconsistent with the GAL's report and testimony at trial. 
          Elliott is technically correct that the GAL's report
stated that Elliott should retain "actual physical custody."  But
according to the GAL's report, Settje did not ask for equal shared
physical custody at the time; rather, because Settje was fairly
satisfied with the court's interim visitation order, he asked only
for an additional overnight visit and to be able to pick up Kessa
directly from daycare for his weekday visits.  The GAL's report
noted Elliott's preference to stop overnight visits because she
thought that Kessa was too young, but recommended that the court
grant Settje's two visitation requests. 
          Because the GAL is unlikely to recommend more visitation
than a parent requests, the GAL's recommendation to allow Elliott
to retain actual physical custody does not equate to a
recommendation to deny Settje equal physical custody.  Instead, the
GAL faced a choice between Settje's and Elliott's conflicting
requests on visitation, which the GAL decided in Settje's favor. 
To the extent that the report recommendation has any bearing on
whether joint physical custody was appropriate, the outcome of the
report favoring Settje and the note that Elliott and Settje "should
be able to communicate and discuss [parenting] matters" could be
interpreted to support an award of joint physical custody at least
as reasonably as Elliott's interpretation that the GAL actually
recommended her primary physical custody over joint physical
custody.
          Furthermore, the GAL testified at trial that both Elliott
and Settje were good parents and that she had no concerns about
either of their respective abilities to parent Kessa.  The GAL also
indicated that she had no reason to believe that equally shared
physical custody would be detrimental to Kessa.  Although the GAL
never expressly recommended equal physical custody of Kessa,
awarding Settje equal physical custody did not conflict with the
GAL's recommendation to grant Settje's requests for additional
visitation and was consistent with the GAL's testimony at trial. 
Thus, the trial court did not abuse its discretion in its use of
the GAL's report and testimony.
     B.   The Superior Court Did Not Abuse Its Discretion by
Imposing a Custody Schedule that Minimizes the Time Kessa Is
Separated from Each Parent but Requires Frequent Exchanges of
Custody.  
          Elliott also argues that the trial court's custody
schedule essentially makes Kessa "into a 'ping-pong' ball with
custody changing hands . . . every two to three days."  Elliott
quotes extensively and selectively from a recent book [Fn. 24] to
support her argument that a child needs a primary care giver. [Fn.
25]  Settje responds that the legislature has indicated a
preference for joint custody and that AS 25.20.060(c) gives a trial
court the authority to impose a custody schedule with frequent and
continuing contact with each parent.  Elliott replies that the
legislative preference for joint custody is limited to joint legal
custody and indicates no preference for joint physical custody. 
          Although Elliott is correct that this court has
previously acknowledged the legislative preference only for joint
legal custody, and not joint physical custody, [Fn. 26] AS
25.20.060(c) does grant a superior court the authority to award
joint physical custody: "The court may award shared custody to both
parents if shared custody is determined by the court to be in the
best interests of the child.  An award of shared custody shall
assure that the child has frequent and continuing contact with each
parent to the maximum extent possible." [Fn. 27]  Thus, if the
trial court concludes that shared custody is in the child's best
interests, a custody schedule with "frequent and continuing contact
with each parent to the maximum extent possible" is required.
          The superior court addressed the statutory factors, found
them fairly equally balanced, and looked at the additional factor
of Kessa's "very young" age and "the opportunity to build strong
bonds with each parent."  The trial court found that "[b]oth
parents appear to be able to work toward a relationship that will
allow each to foster an open and loving frequent relationship
between Kessa and the other parent."  By considering Kessa's age
and the opportunity to build strong bonds with each parent as an
additional "best interests" factor, [Fn. 28] the trial court
implied a finding that it was in Kessa's best interests to have two
active parents.  In developing the custody schedule, the trial
court "balance[d] the need for meaningful contact with each parent
while avoiding any anxiety on the part of the child that the other
parent has abandoned her."  Because the GAL did not believe that
equally shared custody would be detrimental to Kessa and because
Elliott provided no evidence that short-term separation from a
parent would be detrimental (either generally or specifically
regarding Kessa), [Fn. 29] the trial court decided that strong
bonds with both parents outweighed the possibility of anxiety
caused by frequent changes in custody.  The trial court did not
abuse its discretion.
          In effect, Elliott invites us to choose a side in a
continuing dispute over whether primary physical custody by one
parent is generally better than joint physical custody by both
parents.  However, this court's role is to review the superior
court's decision for an abuse of discretion according to the facts
of this particular case.  The legislature is charged with the
general policy decision concerning a preference for joint physical
custody.  Indeed, some states' legislatures have done just that.
[Fn. 30]
          In the end, cooperation between Elliott and Settje in
raising Kessa will undoubtably have a far more profound effect on
Kessa's development than the details of the custody schedule.  The
superior court decided that they could put aside their differences
and ensure that Kessa enjoys the full measure of the benefit of
having two active, excellent parents.  It was not an abuse of
discretion to do so.
V.   CONCLUSION
          Because the trial court did not abuse its discretion in
determining that joint physical custody with minimal time separated
from each parent was in Kessa's best interests, we AFFIRM.


                            FOOTNOTES


Footnote 1:

     See Jenkins v. Handel, 10 P.3d 586, 589 (Alaska 2000) (citing
Valentino v. Cote, 3 P.3d 337, 339 (Alaska 2000)).


Footnote 2:

     See B.B. v. D.D, 18 P.3d 1210, 1212 (Alaska 2001); Platz v.
Aramburo, 17 P.3d 65, 68 (Alaska 2001).


Footnote 3:

     McQuade v. McQuade, 901 P.2d 421, 424 n.9 (Alaska 1995)
(quoting Gratrix v. Gratrix, 652 P.2d 76, 80 (Alaska 1982)).


Footnote 4:

     AS 25.24.150(c) provides the factors for determining the best
interests of a child in a custody dispute:
     
               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 5:

     AS 25.24.150(c)(5).


Footnote 6:

     See McQuade, 901 P.2d at 426 (citing Craig v. McBride, 639
P.2d 303, 305 (Alaska 1982) and Evans v. Evans, 869 P.2d 478, 482-
83 (Alaska 1994)).


Footnote 7:

     Craig, 639 P.2d at 308 (Rabinowitz, C.J., concurring).


Footnote 8:

     See Evans, 869 P.2d at 483 n.4 ("We have never adopted a rule
giving custodial preference to the primary care giver."); I.J.D. v.
D.R.D., 961 P.2d 425, 430 (Alaska 1998) ("[A mother's] argument
that [a child] should remain with her simply because of her status
as primary care giver lacks merit."); McDanold v. McDanold, 718
P.2d 467, 470 n.4 (Alaska 1986) ("[T]he custodial parent will not
be given presumptive preference at the actual custody
disposition.").         


Footnote 9:

     869 P.2d 478 (Alaska 1994).


Footnote 10:

     931 P.2d 371 (Alaska 1996).


Footnote 11:

     See Evans, 869 P.2d at 479, 483.


Footnote 12:

     Id. at 483.


Footnote 13:

     See id. at 482.  


Footnote 14:

     Id. at 483.


Footnote 15:

     See id. at 479.


Footnote 16:

     See id. at 483 & n.3.


Footnote 17:

     Vachon, 931 P.2d at 374.


Footnote 18:

     Id. at 380.


Footnote 19:

     See id. at 377-80.


Footnote 20:

     See id. at 378 (noting that even if mother had previously
wrongfully interfered with custody, to change custod