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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Kinnard v. Kinnard (03/15/2002) sp-5550

Kinnard v. Kinnard (03/15/2002) sp-5550

     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


BERNARD R. KINNARD,      )
                              )    Supreme Court No. S-10207
             Appellant,            )
                              )    Superior Court No.
     v.                       )    4FA-00-208 CI
                              )
DEBRA F. KINNARD,             )    O P I N I O N
                              )
              Appellee.              )    [No. 5550 -  March  15,
2002]
________________________________)



          Appeal  from the Superior Court of the  State
          of    Alaska,   Fourth   Judicial   District,
          Fairbanks, Richard D. Savell, Judge.

          Appearances:  Gayle L. Garrigues, Law  Office
          of   Rita  T.  Allee,  P.C.,  Fairbanks,  for
          Appellant.   Andrew Harrington, Alaska  Legal
          Services    Corporation,    Fairbanks,    for
          Appellee.

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

          FABE, Chief Justice.


I.   INTRODUCTION

          This  case  arises out of the divorce  of  Bernard  and

Debra  Kinnard.   The superior court awarded  shared  custody  of

Kristine   Kinnard  to  Bernard,  her  father,  and  Debra,   her

stepmother.  Because the trial court did not err in finding  that

Debra  is the psychological parent of Kristine, and that  removal

of  Debra from Kristines life would be detrimental to the  child,

we  affirm the award of shared custody.  We also affirm the trial

courts  order directing Bernard to either reinstate Debra to  his

health  insurance policy or pay for her surgery out of his  share

of his pension.

II.  FACTS AND PROCEEDINGS

     A.   Factual History

          Bernard  and Debra Kinnard were married on October  25,

1993.   There  were  no children born of the marriage.   However,

during   the  marriage,  Bernards  two  children  from   previous

relationships   Brandon, born September 19, 1982,  and  Kristine,

born  November 11, 1988  resided with Bernard and Debra.  Bernard

is  a  nutritional  cook at a hospital and Debra  is  a  licensed

foster parent who cares for disabled children.  Bernard and Debra

separated in November 1999.

          Bernard  now lives with another woman, Rachel, who  has

an  eleven-year-old  daughter  named  Andrea.   Rachel  has  made

physical threats toward Debra, on one occasion in the presence of

Kristine.   Kristine also reports that Rachels daughter,  Andrea,

often  hits  her.   In  June  2000 Bernard  and  Rachel  required

Kristine  to write a letter to the custody investigator  claiming

that  she did not want to live with Debra and that her new mother

was  Rachel.  Bernard and Rachel told Kristine to write a  second

letter  in  which she stated that she did not want to  see  Debra

anymore.   Kristine  later  told the  custody  investigator  that

Bernard and Rachel forced her to write the letters and instructed

her  on  what to say and that the statements in the letters  were

not  true.  In the custody investigators view, Bernard and Rachel

were  trying  to  thwart the relationship  between  Kristine  and

Debra.

          Debra suffers from a severe degenerative joint disorder

in  her  knees  which is exacerbated by her  weight.   The  joint

disorder  apparently derives from a 1994 injury  sustained  while

Debra was at work.  Because the joint disorder causes pain in her

knees,  Debra is unable to exercise and lose weight, which  would

in  turn  alleviate the pain in her knees.  Debras  doctor  first

suggested that Debra consider having bariatric surgery  in  early

1999.1   Debra reviewed her options with her doctor, and  in  the

fall of 1999 they decided that she should have the surgery at the

University of Washington hospital.

          The  University of Washington scheduled Debra  for  her

first  pre-surgery tests during the week of July 10, 2000.   This

date  conflicted  with  the custody investigator  interviews  and

Debra  was unable to travel to Seattle for the pre-surgery tests.

Debra  then tried to schedule the surgery for the winter of 2000,

but  the  University of Washington refused because of the weather

in  Alaska  at that time of year, suggesting that the pre-surgery

tests  and the eventual surgery take place in the spring of 2001.

Before  trial, and while the parties were still legally  married,

Bernard wrote a letter to his health insurance company requesting

that  Debra  be  dropped  from  his  employer-provided  insurance

policy.  Thus, Debra has been unable to afford the surgery.

     B.   Procedural History

          When  Bernard filed for divorce in January 2000,  Debra

maintained  that she stood in loco parentis to both  Brandon  and

Kristine  and requested primary physical custody of  Brandon  and

joint  physical custody of Kristine.  Superior Court Judge  Ralph

R.  Beistline issued a standing order and preliminary  injunction

for  domestic relations actions that restrained the parties  from

disposing of marital property.

          Superior  Court  Judge  Richard  D.  Savell  ordered  a

custody   investigation.    The  custody   investigator   quickly

determined  that  Brandon would not be part of the  investigation

because   he   would  be  eighteen  years  of  age   before   the

investigation was complete.2  The custody investigator ultimately

concluded that Debra was the psychological parent of Kristine and

recommended that the parties share legal and physical custody  of

Kristine.  The custody investigator recommended that this  shared

custody consist of alternating weeks with each parent.

          Bernard took the position at trial that he should  have

          sole custody and that Debra should have no visitation with

Kristine.  He claimed that pursuant to the United States  Supreme

Courts  recent decision in Troxel v. Granville,3 Debra  bore  the

burden  of  proving that Bernard is an unfit parent in  order  to

maintain her claim to custody.

          After  a  three-day trial in December 2000,  the  trial

court found the evidence to be overwhelming, even uncontradicted,

that  Debra holds the place of a mother in Kristines  life.   The

trial  court awarded the parties shared custody but withheld  the

divorce  decree  until after Debras surgery  so  that  she  could

retain her health insurance.

          Bernard  filed a motion to reconsider the trial  courts

decision  to  delay  the decree of divorce to  allow  for  Debras

surgery.   Bernard supplemented the motion, arguing  that  Debras

surgery  was  purely  elective and  she  should  try  dieting  or

exercise  instead.   The  trial  court  granted  the  motion   to

reconsider  and  ordered  that  a  divorce  decree  be   entered.

However, the trial court noted in its order that

          [Bernards] removal of medical coverage before
          trial  and without notice or leave  of  court
          has   damaged   [Debra]  and   violated   the
          Presiding Judges Standing Order.  He will  be
          liable for all costs incurred by [Debra] that
          would have been covered by insurance but  for
          his  wrongful  acts.  His  liability  may  be
          enforced against his pension.
          
Bernard appeals the award of shared custody and the order holding

him liable for the costs of Debras medical care.

III. STANDARD OF REVIEW

          It  is  well  settled  that  trial  courts  have  broad

discretion in determining child custody issues.4  We will reverse

a  trial  courts custody determination only if we  are  convinced

that   the  trial  court  has  abused  its  discretion  or   that

controlling findings of fact are clearly erroneous.5  An abuse of

discretion may be found where the trial court considered improper

factors,  failed  to  consider statutorily mandated  factors,  or

improperly  weighed certain factors in making its determination.6

          A factual finding is clearly erroneous only when a review of the

entire  record  leaves us with a firm conviction that  the  trial

court has made a mistake.7  With respect to questions of law,  we

apply  our independent judgment and adopt the rule that  is  most

persuasive in light of precedent, reason, and policy.8

IV.  DISCUSSION

     A.   The  Finding that Debra Is the Psychological Parent  of

          Kristine Is Not Clearly Erroneous.

          The  trial  court found that Debra had become Kristines

psychological parent.  After concluding that Debra Kinnard  holds

a  place  in  [Kristines] life that is of equal or  even  greater

importance than a natural mother, the trial court added that [i]f

this  were  a contest between two natural parents . . . [Bernard]

would  be  stripped of custody of this child.   The  trial  court

further emphasized:  Not only by a preponderance of the evidence,

not by clear and convincing evidence, but this court finds beyond

any   reasonable  doubt  that  removal  of  Debra  Kinnard   from

[Kristines] life would be devastating to [her].

          Bernard   first  argues  that  there  is   insufficient

evidence  to  support  the trial courts  finding  that  Debra  is

Kristines  psychological parent.  In particular, he  argues  that

there  was  little  evidence of Kristines  attitude  or  feelings

toward  Debra.  In Carter v. Brodrick, we recognized the  concept

of  psychological parenthood, which finds its legal basis  either

explicitly  or implicitly in the common law doctrine of  in  loco

parentis.9   In  contrast to Bernards current argument  that  the

doctrine  of in loco parentis must be based exclusively upon  the

childs  feelings and attitude towards the stepparent, in  Carter,

we  relied on a description of a psychological parent as one who,

on   a  day-to-day  basis,  through  interaction,  companionship,

interplay, and mutuality, fulfills the childs psychological  need

for an adult.10  Whether a stepparent has assumed the status of a

psychological  parent depends on whether that person  intends  to

assume  that  obligation.11  Thus, the perspectives of  both  the

          stepparent and the child on this mutual, parent-child bond are

relevant.   In Carter, we concluded that under Alaska law,  those

relationships  that  affect  the  child  which  are  based   upon

psychological rather than biological parentage may  be  important

enough to protect through custody and visitation, to ensure  that

the childs best interests are being served.12

          Many witnesses at trial testified to Debras status as a

psychological  parent  of  Kristine.   Kristine  had  lived  with

Bernard and Debra from the time that she was in kindergarten, and

Bernard admitted that Debra and Kristine had bonded together from

the  beginning  of their relationship.  Two expert  witnesses  as

well  as  the  custody  investigator  testified  that  Debra  and

Kristines relationship was that of parent and child; indeed,  the

custody  investigator concluded that Debra  was  a  psychological

parent to both Kristine and Brandon.  There is ample evidence  in

the  record  to support the trial courts finding that  Debra  was

Kristines  psychological parent, and that finding is not  clearly

erroneous.

     B.   The Trial Court Applied the Proper Legal Standard.

          Bernard   maintains  that  even   if   Debra   is   the

psychological  parent  of Kristine, the trial  court  applied  an

improper  standard to determine custody.  Bernard  contends  that

the  trial court applied the best interests test, when it  should

have  applied the detrimental to the welfare of the  child  test.

The  former, he argues, only applies when the custody dispute  is

between two biological parents, while the latter applies when the

dispute is between a parent and a third party.

          But  Bernard  appears to have misunderstood  the  trial

courts  actions and findings.  Although the trial court initially

suggested  that  the  best  interests  test  would  apply,  after

briefing by both parties the court ultimately applied a different

standard.   The trial court explicitly recognized the distinction

between the best interests and detriment standards when it stated

that  [i]f  this were a contest between two natural parents,  and

          the actions and behaviors of the parties were as they are here,

[Bernard] would be stripped of custody of this child.  The  court

then  found  beyond any reasonable doubt that  removal  of  Debra

Kinnard  from [Kristines] life would be devastating to the  child

and [w]ould cause severe and irreparable harm.

          We   discussed  the  proper  standard  for  determining

custody  between a biological parent and a third party in  Turner

v.  Pannick.13  We concluded that parental custody is  preferable

and  only to be refused where it clearly would be detrimental  to

the child.14  The childs biological parent must be awarded custody

unless  the trial court determines that the parent is unfit,  has

abandoned  the  child, or that the welfare of the child  requires

that  a  non-parent receive custody.15  Even in custody  disputes

between  parents and stepparents, the best interests standard  is

rejected  in favor of the Turner parental preference.  Therefore,

the  Turner  standard  is  the proper  standard  for  this  case.

Here,  although  the  trial court did not specifically  refer  to

Turner, it did emphasize that removing Debra from Kristines  life

altogether  would  cause severe and likely  irreparable  harm  to

Kristine.   As  we recognized in Buness v. Gillen,  severing  the

bond  between the psychological parent and the child may well  be

clearly  detrimental to the childs welfare.16   Thus,  the  trial

court  properly examined both the extent of the strong  emotional

bond  between  Debra  and Kristine and the  question  of  whether

severing  that  bond  would be detrimental to  Kristine.   It  is

evident that the trial court applied the correct standard in  its

finding that removing Debra from Kristines life altogether  would

be  not only detrimental but also devastating to the child.   The

trial court thus properly applied the Turner standard.

     C.   The Trial Courts Analysis Does Not Conflict with Troxel

          v. Granville.

          Bernard  next  argues  that even  if  the  trial  court

properly  applied  the in loco parentis doctrine  of  Carter  and

Buness, that doctrine has been modified by Troxel v. Granville.17

          He explains that [i]n essence, a portion of AS 25.24.150(a) has

been  found unconstitutional by the United States Supreme  Court.

In  Troxel,  the Supreme Court ruled that Washingtons grandparent

visitation  statute  was unconstitutional as applied.18   Bernard

relies  on  Troxel  to  challenge  the  constitutionality  of  AS

25.24.150(a), which contemplates orders providing for  visitation

by a grandparent or other person if that is in the best interests

of the child.  But AS 25.24.150(a) did not form the basis for the

trial   courts   ruling  in  this  case,  and,   therefore,   its

constitutionality is not properly before us in this  appeal.   As

noted  above, the trial court did not rely on the best  interests

standard,  instead implicitly employing the tests  of  Carter  v.

Brodrick  and  Turner  v.  Pannick to  determine  that  Debra  is

Kristines psychological parent and that loss of this parent-child

bond  would  have a devastating effect on Kristine.   And  Troxel

involved  neither  a  claim  of psychological  parenthood  nor  a

determination that depriving the child of a psychological  parent

would  negatively affect the welfare of the child.19   Therefore,

the  trial  courts ruling does not run afoul of  the  holding  in

Troxel.

     D.   The  Order  for  Medical Payment Was Within  the  Trial
          Courts Broad Discretion.
          
          At  the  start  of  this divorce proceeding,  Presiding

Judge  Beistline issued a standing order restraining the  parties

from

          [d]isposing  of, encumbering, or transferring
          any  marital  property  without  the  written
          consent of the other party, except reasonably
          using  funds for the parties expenses or  for
          the  personal  and necessary expense  of  the
          children.
          
While  the  parties were still married, and before  trial  began,

Bernard  contacted  his  employer-provided  health  insurer   and

directed  that  Debra  be  removed  from  his  insurance   policy

effective  November  30, 2000.  The insurer  removed  Debra  from

Bernards policy, and without proof of insurance Debra was  unable

to afford the recommended surgery.

          The  fact that Debra was removed from Bernards coverage

did  not  surface until the end of trial in December 2000.   When

questioned by the trial court, Bernard asserted that, although he

was  not  sure  if  he  would  now be able  to  reinstate  Debras

coverage, he would try.  The trial court, presuming Bernard would

restore  Debra to his health insurance, announced its  intent  to

delay  entering  the divorce decree until after  Debras  surgery.

The  trial  court characterized this as a fair and  compassionate

and  economically practical thing to do, reasoning that,  in  the

absence  of any proof of harm to Bernard, there was no reason  to

issue the decree until after the surgery.

          Bernard  filed a motion for reconsideration  requesting

that  the  decree of divorce be entered immediately; this  motion

was  granted in January 2001.  However, the trial court noted  in

its  order  that  Bernard had damaged [Debra]  and  violated  the

Presiding Judges Standing Order and that Bernard would be  liable

for  all of the costs of the surgery that would have been covered

by  the  health  insurance.  The trial court added that  Bernards

liability  may  be enforced against his pension.   In  its  final

ruling, entered on May 2, 2001, the trial court elaborated on its

earlier order regarding payment of Debras medical expenses:

          [T]he  court finds that Bernard dropped Debra
          from  his  employer-provided health insurance
          coverage before trial without notice  to  her
          and  in  violation  of  the  courts  standing
          domestic  relations  order.   If  Bernard  is
          unable  to  restore Debra  to  his  insurance
          coverage through his employment, any  surgery
          costs  that  Debra  incurs  during  2001  for
          planned  surgery  will be  paid  for  out  of
          Bernards remaining share of his pension.   If
          the  cost of Debras surgery exceeds the total
          amount of Bernards share of his pension plan,
          the  marital portion of Bernards . . . 401(k)
          pension plan shall be distributed to Debra in
          its   entirety  (100%),  provided  that   the
          surgery  is performed by December 31, [2001].
          The Court will retain jurisdiction to enter a
          QDRO after December 31, 2001.
          
          1.   Bernard violated the trial courts standing order.

          Bernard  first  claims  that he  did  not  violate  the

standing order because health insurance is not property under the

standing order and was therefore not protected by the order.   He

asserts that he has no control over the health insurance in  that

he  cannot sell or transfer it, and it has no cash value.  But in

Brooks  v.  Brooks,  we implied that health insurance  should  be

treated  as  a  marital asset.20  There, the wife  cancelled  her

husbands  coverage  under her medical insurance  policy,  and  we

approved  the  superior courts response to this  depletion  of  a

marital  asset:  giving the husband a credit  for  his  uncovered

medical  expenses.   We  conclude that unilateral  removal  of  a

spouse  from ones health insurance policy constitutes dissipation

of a marital asset.21

          Coverage  under a health insurance policy is a  marital

asset.  The presiding judges standing order specifically directed

the  parties  not  to dispose of marital property.   Bernard,  by

disposing of Debras health insurance, violated that order.

          2.   The   trial  courts  order  that  Bernard   either
               reinstate Debras coverage or pay her medical  bill
               was within its broad discretion.
               
          Bernard  claims  that,  by ordering  him  to  reinstate

Debras coverage under his policy or pay her surgery costs out  of

his half of the pension, the trial court awarded Debra an unequal

share  of  the  marital property.  Bernard further contends  that

awarding  a  portion of his pension share to Debra to  cover  the

costs  of  surgery  is not an appropriate remedy  because  it  is

unjustifiably  punitive.   But Bernard had  several  options  for

remedying his unilateral act, including rescinding his letter  to

the  insurance company, paying for COBRA coverage long enough  to

cover  the  operation,  or paying for the surgery  from  his  own

resources.  Bernards retirement account was to be used only if he

did not take advantage of the other options available.

          Moreover,  the  trial courts order was entirely  within

the  scope  of  its  authority to fairly  allocate  the  economic

consequences  of  the divorce.22  Under AS 25.24.160(a)(4),  when

          dividing the marital property the trial court is directed to

consider  the  parties  health, their earning  capacities,  their

financial  conditions  including the  availability  and  cost  of

health  insurance, as well as any unreasonable depletion  of  the

marital  assets.23   Thus, the trial courts  order,  rather  than

punishing Bernard, properly considered the statutory criteria and

compensated  Debra  for the premature loss of  health  insurance.

The  trial court placed Debra in the position she would have been

in  had  Bernard not removed her from his insurance.  This  order

was  well within the courts statutory authority as well as within

its general equitable authority.24

V.   CONCLUSION

          For  the  foregoing reasons, the decision of the  trial

court is AFFIRMED in all respects.

_______________________________
     1     Bariatric surgery is a major surgery which reduces the
size  of  the stomach and reroutes parts of the digestive system.
The  surgery takes three to five hours to perform, followed by  a
five- to seven-day stay in the hospital.

     2    Brandon currently resides with Debra by his own choice.

     3    530 U.S. 57 (2000).

     4    Valentino v.  Cote, 3 P.3d 337, 339 (Alaska 2000).

     5    Holl v. Holl, 815 P.2d 379, 380 (Alaska 1991).

     6    Pearson v. Pearson, 5 P.3d 239, 242 (Alaska 2000).

     7    Money v. Money, 852 P.2d 1158, 1161 (Alaska 1993).

     8    Vachon v.  Pugliese, 931 P.2d 371, 375 (Alaska 1996).

     9    644 P.2d 850, 853 (Alaska 1982).

     10     Id.  at  853 n.2 (quoting Gruenberg & Mackey,  A  New
Direction for Child Custody in Alaska, 6 U.C.L.A.-Alaska L.  Rev.
34, 36 (1976)).

     11    644 P.2d at 853.

     12    Id. at 855.

     13    540 P.2d 1051 (Alaska 1975).

     14    Id. at 1054.

     15    Id. at 1054-55.

     16    781 P.2d 985, 989 n.8 (Alaska 1989).

     17    530 U.S. 57 (2000).

     18    Id. at 66-67.

     19    Id. at 60-63.

     20    677 P.2d 1230, 1235 (Alaska 1984).

     21     Commentators have recognized a sound policy basis for
treating  health  insurance as an asset for  the  spouse  who  is
insured.   See,  e.g.,  William R. Horbatt  &  Alan  M.  Grosman,
Division  of  Retiree  Health  Benefits  on  Divorce:   The   New
Equitable Distribution Frontier, 28 Fam. L.Q. 327, 327-28 (1994);
see   also   Elizabeth  L.  Bennett  &  John   W.   Goldsborough,
Guaranteeing  Medical  Insurance  Coverage  After  Separation  or
Divorce,  28  Fam.  L.Q. 305 (1994) (demonstrating  valuation  of
medical retirement benefits).

     22    See AS 25.24.160(a)(4), which provides in part:

          [T]he   division  of  property  must   fairly
          allocate  the economic effect of  divorce  by
          being based on consideration of the following
          factors:
          
          . . . .
          
               (E)    the   conduct  of  the   parties,
          including whether there has been unreasonable
          depletion of marital assets.
          
     23    AS 25.24.160(a)(4)(B)-(E).

     24     See  Siggelkow v. State, 731 P.2d 57,  61-62  (Alaska
1987).