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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Velasquez v. Velasquez (01/11/2002) sp-5525

Velasquez v. Velasquez (01/11/2002) sp-5525

     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

                                 
CINDY LEE VELASQUEZ,          )
                              )    Supreme Court No. S-10118
             Appellant,       )
                              )    Superior Court No.
     v.                       )    3AN-99-9332 CI
                              )
JOE VELASQUEZ,                )    O P I N I O N
                              )
             Appellee.        )    [No. 5525 - January 11, 2002]
______________________________)



          Appeal from the Superior Court of the State of
Alaska,  Third Judicial District, Anchorage, Rene J. Gonzalez,
Judge.

          Appearances:  Cindy Velasquez, pro se,
Anchorage, Appellant.  Steven Pradell, Steven Pradell & Associates,
Anchorage, for Appellee.

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

          FABE, Chief Justice.

I.   INTRODUCTION
          Cindy Velasquez lost custody of her three minor children
to their father, Joe Velasquez, after a two-day trial.  Cindy
alleges on appeal that the trial court abused its discretion by
considering an improper factor, by assigning disproportionate
weight to that factor while ignoring others, and by failing to base
its custody decision on the best interests of the children. 
Specifically, Cindy contends that it was improper for the trial
court to consider as a factor her departure from the marital home
without notice.  Cindy argues that the trial court's custody award
was based "almost entirely" on this fact.  We conclude that the
trial court's factual findings were not clearly erroneous, that
Cindy's conduct before and after the separation and its effect on
the children were proper factors for the court to consider, and
that the court did not assign disproportionate weight to those
factors.  We affirm the trial court's award of custody of the three
minor children to Joe.
II.  FACTS AND PROCEEDINGS
          Cindy and Joe Velasquez married in September 1980.  They
had four children together: Eulalia, born in 1981; David, born in
1984; Benjamin, born in 1986; and Andrew, born in 1993.  Because
Eulalia is not a minor child, her custody is not at issue here. 
The couple separated in October 1998.
          Before the separation, Cindy was the primary caregiver
and a stable parent upon whom the children relied.  The trial court
found that prior to the separation, "the children were provided
with a stable and satisfactory home environment."  The court
described Cindy as "an adequate parent except in the area of
homeschooling the children."  It made no findings regarding Joe's
parenting prior to the separation.  At trial, Eulalia described her
father as a "quiet" and "stable" parent.
          Joe and Cindy's explanations diverge as to the
circumstances of their separation and the events that have
transpired since their separation.  Joe claims that Cindy never
told him or the children where she was staying and that she
"disappeared from [their] lives" for a year and "abandoned" the
family.  Joe alleged that Cindy was having an affair.  Joe and
Eulalia testified at trial that Cindy ducked down in the car when
she was driving with their neighbor, Lawrence Sherman, and that she
hid inside when her children stopped by Sherman's house.  For
several weeks Eulalia did not know where her mother was.  Eulalia
testified, "we would call her on [her cellular phone] and try to
get her to tell us where she was."  Joe claims that when the
children came across her motor home, Cindy moved the motor home to
hide from her children, who were actively looking for her.
          Cindy, on the other hand, contends that Joe disparaged
and belittled her, that he undermined her discipline of the
children, that she left the marital home only after two ultimatums
from Joe, that she did not have an affair, and that she told her
daughter about her decision to leave before she left.  Cindy admits
that she did not inform the family of her whereabouts but explains
that she was staying with a friend who did not want to be involved
in the family's problems.  Cindy asserts that she was not hiding
from her children, that she made many attempts to reach her
children by phone, that she had regular telephone contact with them
in July and August 1999, and that she "has been there for the
children" since the separation.   Joe and Cindy agreed to weekend
visitations shortly after they separated.  However, it appears that
Cindy did not begin regular visitation with the children until
August or September 1999.
          In August 1999 Cindy filed for divorce, seeking primary
physical custody and joint legal custody of the children.  Joe
sought, and continues to seek, sole legal and primary physical
custody of the children.
          In deciding the matter of interim custody, Superior Court
Judge Rene J. Gonzalez spoke with Benjamin and David privately and
heard testimony from Cindy, Eulalia, and Joe.  On November 4, 1999,
the trial court awarded interim custody of David and Benjamin to
Joe, and awarded interim custody of Andrew to Cindy.  The trial
court found that "[t]he manner in which Cindy Lee left the marital
residence and her lack of contact with her minor children for long
periods of time is inexcusable and unsettling to the children,
creating substantial hardship within them."
          At the May 24, 2000 custody trial, Cindy changed her
position, asserting that she sought primary physical custody of
Andrew only and joint custody of her two older sons.  This time
Judge Gonzalez awarded primary custody of all three minor children
to Joe, and granted Cindy liberal visitation rights.
          As the basis for the custody award, Judge Gonzalez
reiterated his previous findings that the manner in which Cindy
left and her lack of contact with her children was inexcusable and
unjustified.  He found that Cindy's conduct "could be considered
child neglect" and that it caused the children trauma, confusion,
substantial hardship, and disruption to the stability of the
family.  Judge Gonzalez noted that "David and Benjamin have
unequivocally expressed a preference to be in the primary physical
custody of their father" and that "[t]he minor children are strongly
bonded to each other and the older children have committed
themselves to protecting their younger brother Andrew from
circumstances they perceive may cause harm to him."  Finally, he
found "insufficient evidence . . . to support a finding of
emotional abuse other than Cindy Lee's subjective belief."  He
concluded that awarding primary custody to Joe serves the welfare
and best interests of the three minor children.  Cindy seeks
reversal of this decision with instructions to hold a new hearing.
III. DISCUSSION
     A.   Standard of Review
          We will reverse a trial court's custody determination if
critical factual findings were clearly erroneous or if there has
been an abuse of discretion. [Fn. 1]  A finding is clearly
erroneous if a review of the entire record leaves us firmly
convinced that a mistake has been made. [Fn. 2]
     B.   It Was Not Improper for the Trial Court To Consider
Cindy's Departure from the Marital Home Without Notice, Her
Avoidance of the Children After She Left, and the Effect of Her
Conduct on the Children.
          Cindy argues that in awarding custody of the three minor
children to Joe, the trial court considered an improper factor:
that Cindy left the marital home without notice and disrupted what
the trial court characterized as a stable family environment.  She
does not argue that the trial court failed to consider the
statutory factors.  Rather, she contends that the trial court's
order had the effect of punishing her by giving weight to the fact
that she left the marriage.  She maintains that Judge Gonzalez
based his decision on his belief that Cindy lacked good cause to
leave the marriage, his dislike for the manner in which she left
the marriage, and the effect her leaving had on the children. 
Cindy concludes that the "no fault" divorce statute prohibits the
court from considering the manner in which Cindy left the marriage
in making its custody determination.
          Alaska Statute 25.24.150(c) requires the superior court
to base its custody decision on the best interests of the children.
[Fn. 3]  "It is an abuse of discretion to consider improper
factors, to fail to consider relevant statutory factors, or to
assign disproportionate weight to some factors while ignoring
others." [Fn. 4]  The superior court "may consider only those facts
that directly affect the well-being of the child." [Fn. 5] 
          Cindy contends that the manner and circumstances in which
she left the marriage and its effect on the children were improper
factors for the trial court to address in assessing the statutory
factors.  Joe responds that the trial court may consider the
mother's abandonment of the children and her other actions or
omissions that detrimentally affected the children.  He notes that
Cindy admitted that the well-being of the children was affected by
her actions and that the overwhelming evidence in the record shows
this detrimental effect. [Fn. 6]
          The trial court's analysis of the custody issues in this
case was wholly appropriate.  It properly weighed the negative
impact on the children of Cindy's abrupt departure from the home
and her lack of contact with the children for an extended period of
time. [Fn. 7]  The court's findings regarding Cindy's conduct and
its effect on the children are in accordance with its obligation
under AS 25.24.150(c) to determine custody with the goal of serving
the best interests of the children, and under AS 25.24.150(c)(1)
and (2) to consider the emotional needs of the children and each
parent's capability and desire to meet those needs. [Fn. 8]  The
trial court explained that "the manner and circumstances under
which Cindy Lee left and her lack of contact with the minor
children was inexcusable and without just cause, with the end
result that the children were traumatized and a substantial
hardship was created by her unwarranted conduct."
          Ample evidence in the record supports these findings. 
Cindy admitted on the witness stand that David and Benjamin were
hurt by her abrupt departure, that the two boys continue to have
anger issues, and that her abrupt departure is one reason why David
prefers to live with his father.  Eulalia testified that she was
upset when she saw the note from her mother saying she had left,
and that she and her siblings tried calling every place they could
think of to try to find her.  She testified that she and her
brothers were upset by the fact that their mother was gone for
several weeks during which time they did not know where she was
staying.  "We banded together and tried to the [sic] best we could
to keep things going until she got back."  She further testified
that on at least two occasions, her mother ducked down in Lawrence
Sherman's car to hide from Eulalia and her siblings.  Eulalia
stated that her mother refused to tell her and her brothers where
she was staying and she did not learn of her mother's whereabouts
until she found her motor home at a motor home park in June 1999,
eight months after Cindy moved out.
          This evidence of the children's feelings of fear,
sadness, anger, and abandonment clearly touches upon the issue of
the best interests of the children [Fn. 9] and Cindy's capability
and desire to meet her children's emotional needs. [Fn. 10] 
Therefore, it was not improper for the trial court to factor these
concerns into its decision.  Although we can imagine domestic
violence cases in which an abused spouse may be forced to avoid
contact with the children to hide from the abusive spouse, Cindy
presented no evidence that her conduct was motivated by fear for
her safety.  The trial court concluded that there was insufficient
evidence to support a finding of emotional abuse "other than Cindy
Lee's subjective belief" and Cindy does not challenge this finding.
          Cindy further argues that the effect on the children of
the breakup of the parties' marriage should not be a factor in
awarding custody.  She argues that the trial court's consideration
of this factor violates the "no fault" divorce statute, which the
Alaska legislature enacted with the specific intent to remove fault
of a party for the breakup of a marriage from the custody
determination.  Cindy further argues that the trial court's order
"was based almost solely on its belief that Cindy lacked good cause
to leave the marriage and the affect [sic] her leaving had on the
children."  Joe responds that the trial court was not punishing
Cindy for leaving the marriage, but rather based its decision on
the well-founded conclusion that her actions and omissions were so
extreme as to constitute child neglect.  Joe argues that in some
cases the facts surrounding couples breaking up are relevant to the
best interests of the children and they were properly considered
here.
          Cindy is correct that in 1968 Alaska eliminated the
concept of fault from custody determinations. [Fn. 11]  Here,
however, a distinction must be made between fault for a divorce,
which may not be considered, and Cindy's avoidance of her children
and its effect on their emotional well-being.  Joe alleged, and
Eulalia confirmed, that Cindy refused to tell her children where
she was staying and literally hid from them for several weeks.  She
did not seek regular visitation with her children until nine months
after she moved out.  As discussed above, there is ample evidence
that the children were traumatized by their mother's behavior.  We
conclude that the trial court did not assign fault for the divorce.
          Cindy further argues that the fact that she left her
marriage was the "determinative factor that caused the trial court
to award custody to Joe."  She contends that the trial court's
application of the statutorily mandated factors was colored by the
fact that she decided to leave the marriage.  However, as Cindy
acknowledges in her brief, the trial court relied not just on the
fact that she left the marriage, but the manner in which she left
and its effect on the children.  As discussed above, the court did
not err in considering these facts. 
          Furthermore, the trial court considered more than just
the fact of Cindy's departure and its effects in assessing the
statutory factors and the best interests of the three minor
children.   In addition to making findings on the manner in which
Cindy departed and its effect on the children, the trial court
addressed Joe's ability to address the children's needs, David and
Benjamin's preference to live with their father, and the importance
of preserving the sibling bond by keeping the children together. 
All of these facts are pertinent factors that affect the best
interests of the children.  The trial court did not
disproportionately weigh Cindy's conduct and its impact on the
children.
     C.   The Trial Court Did Not Err in Entering a Custody Order
that Had the Effect of Changing Its Interim Custody Determination.
          The trial court concluded in its interim custody order
that Cindy was the parent who could best meet Andrew's mental and
emotional needs, notwithstanding its conclusion that "[t]he manner
and circumstances in which Cindy Lee left the marital residence and
her lack of contact with her minor children for long periods of
time is inexcusable and unsettling to the children, creating
substantial hardship within them." Cindy argues that the trial
court erred because no evidence was submitted at trial to show that
the trial court's interim decision awarding her custody of Andrew
was clearly erroneous or that circumstances had changed since she
was awarded interim custody.
          Modification of a final custody award requires evidence
of changed circumstances and evidence that the modification is in
the best interests of the child. [Fn. 12]  By contrast, we have
long held that the trial court's custody decision requires only an
analysis of the AS 25.24.150(c) factors and consideration of the
best interests of the child. [Fn. 13]  There is no legal authority
to support Cindy's contention that the trial court must find
changed circumstances to justify altering its interim custody
award.
          The period of time from separation to trial when a parent
has custody may be considered in determining the relative stability
of the parties, but there is no requirement that the trial court
consider this factor. [Fn. 14]  Furthermore, a trial court may not
give presumptive preference at the final custody disposition to the
parent who was awarded interim custody. [Fn. 15]  To give
preference in awarding final custody to the parent who is awarded
interim custody would deprive the noncustodial parent of the
benefit of a decision based on a fully developed record.  During
the interim custody proceedings, a trial court generally does not
have complete evidence relevant to each statutory factor as it does
when it makes its final custody determination.  Accordingly, the
trial court did not err in failing to address whether circumstances
had changed since Cindy was awarded interim custody of Andrew.
IV.  CONCLUSION
          The trial court did not commit error in considering the
manner and circumstances in which Cindy left the marital home, her
lack of contact with the children after she left, and the effect of
her conduct on the children.  These are not improper factors
because the negative impact of Cindy's conduct on the children is
pertinent to the best interests of the children and her capability
and desire to address their emotional needs.  Neither did the trial
court disproportionately weigh these facts.  In making its
determination of the children's best interests, it also considered
the children's preferences, the educational needs of the children,
and the bond between the siblings.  The trial court was not
required to find that circumstances had changed since its interim
custody award of Andrew to Cindy.  The changed circumstances rule
applies not to a final custody award, but rather only to custody
modifications.  We AFFIRM the trial court's award of custody of the
three minor children to Joe.


                            FOOTNOTES


Footnote 1:

     R.I. v. C.C., 9 P.3d 274, 277 (Alaska 2000).


Footnote 2:

     City of Hydaburg v. Hydaburg Coop. Ass'n, 858 P.2d 1131, 1135
(Alaska 1993).


Footnote 3:

     The nine factors under AS 25.24.150(c) are:
          (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 4:

     West v. West, 21 P.3d 838, 841 (Alaska 2001).


Footnote 5:

     AS 25.24.150(d).


Footnote 6:

     Joe's brief discusses how each statutory factor supports the
award of custody to him.  Because Cindy does not dispute that the
trial court considered all of the statutory factors, we need not
analyze whether each factor supports the custody award.


Footnote 7:

     See Morel v. Morel, 647 P.2d 605, 607 (Alaska 1982).


Footnote 8:

     AS 25.24.150(c)(1) and (2) also require the court to consider
the capability and desire of each parent to meet the children's
physical, mental, religious, and social needs.


Footnote 9:

     See AS 25.24.150(c).


Footnote 10:

     See AS 25.24.150(c)(2).


Footnote 11:

     AS 24.25.150 (formerly AS 09.55.205 [renumbered in 1983];
enacted as ch. 160, sec. 1, SLA 1968); see also Sheridan v.
Sheridan,
466 P.2d 821, 824 n.13 (Alaska 1970) (explaining the purpose and
effect of the 1968 law). 


Footnote 12:

     AS 25.20.110(a) ("An award of custody of a child or visitation
with the child may be modified if the court determines that a
change in circumstances requires the modification of the award and
the modification is in the best interests of the child."); see also
J.L.P. v. V.L.A., 30 P.3d 590, 595 (Alaska 2001).


Footnote 13:

     See, e.g., R.I. v. C.C., 9 P.3d 274, 277 (Alaska 2000); Virgin
v. Virgin, 990 P.2d 1040, 1044-45 (Alaska 1999); Park v. Park, 986
P.2d 205, 207 (Alaska 1999).  By ruling that an award of custody to
one parent is in the best interests of the child, it is implied
that a custody award to the other parent would not be in the
child's best interests. 


Footnote 14:

     See McDanold v. McDanold, 718 P.2d 467, 470 n.4 (Alaska 1986)
(noting that to find an abuse of discretion based on the trial
court's failure to consider the separation-to-trial time period
when the mother had exclusive custody would encourage parties to
embark on pretrial maneuvering).


Footnote 15:

     Id.; see also Carle v. Carle, 503 P.2d 1050, 1053 n.6 (Alaska
1972).