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Kelly v. Joseph (5/10/2002) sp-5570
Kelly v. Joseph (5/10/2002) sp-5570
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
JAMES L. KELLY, )
) Supreme Court No. S-10116
Appellant, )
) Superior Court No. 4FA-98-2437
CI
v. )
) O P I N I O N
KATHERINE JOSEPH, f/k/a )
Katherine Kelly, ) [No. 5570 - May 10, 2002]
)
Appellee. )
________________________________)
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Richard D. Savell, Judge.
Appearances: Fleur L. Roberts, Law Office of
Fleur L. Roberts, Fairbanks, for Appellant.
Christopher E. Zimmerman, McConahy, Zimmerman
& Wallace, Fairbanks, for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
EASTAUGH, Justice.
I. INTRODUCTION
This appeal arises out of a dispute between James Kelly
and Katherine Joseph (f/k/a Katherine Kelly) over the custody of
their three children. The superior court awarded James primary
physical custody of the three children after the divorce.
Katherine later alleged that James breached the visitation
provisions of the custody agreement and requested a modification
of the agreement so that she could obtain physical custody of the
two youngest children; the oldest child was to remain with James.
The superior court ruled for Katherine after finding that Jamess
breaches of the custody agreement resulted in a change of
circumstances. We affirm the order modifying custody but remand
for recalculation of child support.
II. FACTS AND PROCEEDINGS
James and Katherine Kelly (n/k/a Katherine Joseph) were
married in July 1989. They had three children: Shane, born in
1986; James, Jr. (Junior), born in 1988; and Peter, born in 1991.1
James and Katherine separated in August 1998 and were divorced in
October 1999. The couple lived in Fort Yukon while they were
married. When they separated, Katherine moved to Fairbanks.
James and Katherine entered into a child custody
agreement in October 1999. It provided that James was to have
primary physical custody of the three children, who were to
continue living in Fort Yukon during the school year. Katherine
was to have set visitation privileges, including six weeks with
the children during the summer, alternating holidays, and free,
open, liberal, unrestricted [telephone] access. The children
were to be able to visit Katherine any time she was in Fort Yukon
her job requires that she travel there frequently and they were
to be able to visit Katherine any time James took the children to
Fairbanks.
The problems leading to the present dispute began
almost immediately after the divorce was final. Katherine claims
that when she called, James frequently hung up on her or
instructed the children not to answer the telephone. James
testified that he does not recall hanging up on Katherine,
although he does not fully dispute her claim. The superior court
found that James did not fulfill his responsibility under the
custody agreement because, in part, the level of telephone
communication from Fort Yukon to Fairbanks [was] woefully
inadequate.
Katherine alleged other violations of her visitation
rights. The parties dispute the circumstances surrounding nearly
all of these breaches, but the superior court determined that the
weight of the evidence supported Katherines allegations. The
first significant incident occurred in December 1999. Per the
custody agreement, Katherine was to have visitation with the
children for Christmas. Katherine sent a fax to James stating
that she had reserved seats for the children to fly to visit her
in Fairbanks from December 22 until December 26. James disputed
that the tickets were actually purchased and stated that he could
not afford to purchase the tickets himself. The superior court
determined that, regardless of the financial situation, James
wrongfully denied Katherine visitation at Christmas 1999.
Shortly after a July 4, 2000 incident involving the
police, Katherine moved to modify the child custody and
visitation provisions of the parties agreement.
Another incident occurred in December 2000, while
Katherines motion to modify custody was pending. Katherine
planned to have the boys fly to Fairbanks for Christmas. She
faxed a message to James on December 6 proposing visitation dates
of December 22 through December 26. James did not send the boys
to Fairbanks until December 24 because he claimed there was a
party that the boys wanted to attend in Fort Yukon. The superior
court determined that the custody agreement did not mean that dad
decides that a party on December 23rd is a justification to deny
visitation.
The superior court orally entered its findings of fact
and conclusions of law in January 2001. Several months later the
court modified the original custody agreement and awarded primary
physical custody of Junior and Peter to Katherine; James retained
primary physical custody of Shane. The court also modified the
child support payments.
James appeals the custody modification and child
support award.
III. DISCUSSION
A. Standard of Review
The superior court has broad discretion in determining
child custody.2 The superior courts custody determination will
not be set aside unless the record shows that its controlling
findings of fact are clearly erroneous or the court abused its
discretion.3 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.4 An abuse
of discretion has occurred 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.5
This court will generally not disturb a trial courts
decision on a motion for child support unless the trial court
abused its discretion. We will set aside a lower courts factual
findings only when they are clearly erroneous.6 Whether the
trial court used the correct method of calculating child support
is a matter of law that we review de novo.7
B. The Superior Court Did Not Err in Modifying the Custody
Agreement Giving Katherine Primary Custody of Junior
and Peter.
James argues that the superior court erred in modifying
the custody agreement solely because he had not been cooperative
in carrying out the visitation obligations. He argues that the
modification was a sanction against him for his behavior. The
superior court may not modify an existing custody arrangement
unless it determines that a change in circumstances requires the
modification of the award and the modification is in the best
interests of the child.8
1. Jamess alleged breaches of the visitation
provisions of the custody agreement satisfied the
changed circumstances requirement.
James argues that because the children were happy,
healthy, well-cared for and doing better in school and because
the alleged communication problems with Katherine occurred in
late 1999 immediately following the parties divorce, Katherine
did not demonstrate that a substantial change in circumstances
had taken place. Alaska Statute 25.20.110(a) does not specify
what must be shown to demonstrate a change in circumstances. We
have previously held that [a]ctions by a custodial parent which
substantially interfere with the noncustodial parents visitation
rights [are] sufficient to constitute a change [in
circumstances]. 9 These actions include a detrimental and well
established pattern of behavior on the part of [the custodial
parent] to erode the bonds of love and affection between the
[other parent] and the children. 10
The custody agreement specified Katherines visitation
rights, including telephonic communication and holiday visits.
The superior court found that James did not take necessary steps
to ensure that Katherines rights under the agreement were
satisfied. After examining telephone records, the superior court
found that the level of telephone communication from Fort Yukon
to Fairbanks is woefully inadequate and affirmative[ly
demonstrates] Mr. Kellys unwillingness to heal these children or
allow them to share. The superior court also found that James
did not honor the spirit of the visitation agreement when
Christmas vacation was denied in [1999], and without just [cause
was] shortened in 2000. Our review of the record convinces us
that the superior court did not abuse its discretion in
determining that James breached the visitation provisions of the
custody agreement, thus satisfying the changed circumstances
requirement for modifying child custody.
2. The superior court did not err in determining that
the change in circumstances requires modification
of child custody in the best interests of the
children.
Alaska Statute 25.24.150(c) requires that courts
determine custody in accordance with the childrens best
interests, after considering specified factors.11 James argues
that the superior court did not engage in a valid best interests
analysis as AS 25.24.150(c) requires because the court mainly
based modification on a single factor: Jamess alleged breaches of
the visitation provisions of the custody agreement. He argues
that [t]he Trial Court . . . gave far too much weight to what was
found to be [Jamess] non-cooperation with the parties agreement
and court order on custody. We agree that a superior court may
not modify custody solely because the custodial parent does not
comply with orders of the court; it must still conduct a best
interests analysis.12 We will find that the trial court abused
its discretion if it considered improper factors, failed to
consider statutorily mandated factors, or improperly weighed
certain factors in making its determination.13
Although the superior court focused on Jamess breach of
the custody agreement in determining that modification was in the
best interests of the children, it also engaged in a broader best
interests analysis. The superior court considered how the
relocation might affect the children and their educational
opportunities. It also found that both parents were capable of
raising the children, although it expressed concern that the
children were not receiving the professional care needed to help
[them] heal from the emotional wounds theyve suffered. We are
generally reluctant to separate siblings in custody battles, even
where it mollifies tensions such as those between Shane and
Katherine.14 But the superior court carefully considered the
childrens best interests in constructing the modification order
and gave Shane an option to choose at any time to be with his
brothers. The superior courts findings were supported by the
record and adequately address the required factors set out in AS
25.24.150(c).
The record does not support Jamess claim that the
superior court abused its discretion in modifying custody. The
superior court found distressing Jamess refusal to actively
engage the children in communication with Katherine, and the
record supports its finding that Jamess efforts to give the
children contact with Katherine were woefully inadequate. The
superior court found particularly egregious Jamess repeated
interference with holiday visits. These instances were not
isolated, but formed a pattern of interference. Indeed, Jamess
interference with visitation for Christmas 2000 occurred after
Katherine had already moved to modify custody. But the superior
court did not limit its focus to Jamess interference with
visitation rights. Instead, it considered the impact of the
modification on the children and determined that the evidence
supporting modification outweighed evidence of potential
disruptions in the childrens lives. We will not reweigh the
evidence when the record provides clear support for the trial
courts ruling.15
Because the superior court assessed the childrens best
interests in relation to the relevant statutory factors of AS
25.24.150(c), we hold that it did not err in modifying custody.
C. Jamess Child Support Obligation Must Be Recalculated.
James argues that the superior court erred in
calculating child support. The superior court calculated child
support by applying Alaska Civil Rule 90.3(b),16 arriving at a
total annual award to Katherine of $5,266.98 ($438.92 per month).17
James argues that the courts determination of how much time each
parent would have physical custody of the children does not
accurately reflect the actual time anticipated by the parties.
He expects to have physical custody of Shane ninety-five percent
of the time and physical custody of the two other children for at
least twenty-five percent of the time. Jamess calculation
implies that he will have physical custody of each child for an
average of approximately forty-eight percent of the time. This
figure varies from the superior courts calculated custody figure
of 33.33% for James.
The superior courts calculated figure for Jamess
custody may be incorrect because its March 2001 order appears to
suggest a greater average percentage for Jamess physical custody
than the 33.33% the court used in calculating child support.18 We
cannot assess the extent of this possible miscalculation because
we cannot determine how many days each parent is to have
visitation under the superior courts custody order. It does seem
clear that Katherine has primary physical custody of Junior and
Peter and that James has primary physical custody of Shane. We
hold that it was error to calculate the divided custody award
under Rule 90.3(b) without first accurately accounting for each
parents period of physical custody.
James may also be entitled to move for recalculation of
the child custody award for changed circumstances under Rule
90.3(h)(1), which provides:
A final child support award may be modified
upon a showing of a material change of
circumstances. . . . A material change of
circumstances will be presumed if support as
calculated under this rule is more than 15
percent greater or less than the outstanding
support order.
We have held that certain changes in the law can constitute
material changes of circumstances permitting the modification of
child support orders [including] the adoption of Civil Rule 90.3,
itself.19 The rule change which makes Rule 90.3(a), rather than
Rule 90.3(b), the default method for calculating divided custody
awards is such a material change.20 Applying Rule 90.3(a) rather
than Rule 90.3(b) would decrease the divided custody support
award by about forty-three percent.21
V. CONCLUSION
For these reasons, we AFFIRM the order modifying child
custody and REMAND for recalculation of Jamess child support
obligation.
_______________________________
1 Katherine also has an older daughter, Amy. Amy was
fifteen at the time of the custody investigators report. James
is not Amys father, and Amy lives with her paternal grandmother
in Chulkytak.
2 Siekawitch v. Siekawitch, 956 P.2d 447, 449 (Alaska
1998) (quoting Borchgrevink v. Borchgrevink, 941 P.2d 132, 134
(Alaska 1997)).
3 Id.
4 Id.
5 Id.
6 Murphy v. Newlynn, 34 P.3d 331, 333 (Alaska 2001)
(citations omitted).
7 Id.
8 Pinneo v. Pinneo, 835 P.2d 1233, 1238 (Alaska 1992)
(quoting AS 25.20.110) (internal quotations omitted).
9 Hermosillo v. Hermosillo, 797 P.2d 1206, 1209 (Alaska
1990) (citations omitted).
10 Pinneo, 835 P.2d at 1238.
11 AS 25.24.150(c) requires that the court 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 childs 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.
12 Platz v. Aramburo, 17 P.3d 65, 71 (Alaska 2001); see
also Hakas v. Bergenthal, 843 P.2d 642, 644 (Alaska 1992) ([Best
interests] inquiry is not obviated by [a partys]
noncooperation.).
13 Gratrix v. Gratrix, 652 P.2d 76, 80 (Alaska 1982);
Deivert v. Oseira, 628 P.2d 575, 577 (Alaska 1981).
14 McQuade v. McQuade, 901 P.2d 421, 425 (Alaska 1995).
But see Valentino v. Cote, 3 P.3d 337 (Alaska 2000) (holding
superior courts determination that fourteen-year-old was
sufficiently mature to express choice to separate from sibling
was not abuse of discretion).
15 D.M. v. State, Div. of Family & Youth Servs., 995 P.2d
205, 214 (Alaska 2000).
16 When the superior court issued its child support order
on March 7, 2001, Civil Rule 90.3 permitted, but did not require,
use of the method set out in Rule 90.3(b) to calculate divided
custody awards. See Rowen v. Rowen, 963 P.2d 249, 254 (Alaska
1998). Subsection (3) of Rule 90.3(b) states, in part:
The parent with the larger [annual amount
owed for child support] is the obligor parent
and the annual award is equal to the
difference between [the obligors calculated
payment and the other parents calculated
payment] multiplied by 1.5. However, if this
figure is higher than the amount of support
which would be calculated under paragraph (a)
assuming primary custody, . . . the annual
support is the amount calculated under
paragraph (a).
Rule 90.3, following amendment effective April 15,
2001, now requires that Rule 90.3(a) be used to determine divided
custody awards. Alaska R. Civ. P. 90.3(b)(6) (2001-2002). Rule
90.3(b)(6) states in part: Divided Custody. A child support
award in a case in which the parents have divided custody is
calculated, first, by determining what each parent would owe the
other for children in that parents primary physical custody under
90.3(a) and offsetting those amounts. (Emphasis added.) See
also Alaska R. Civ. P. 90.3, cmt. V.D (2001-2002) (same); cf.
Bunn v. House, 934 P.2d 753, 755-58 (Alaska 1997) (applying
similar method to that of Rule 90.3(a) for divided custody case).
17 The superior court arrived at this amount as follows:
$26,056.90 (Jamess adjusted annual income)
.33 (Rule 90.3(a) multiplier for three
children)
$8,598.78 (Amount James would owe under Rule
90.3(a) if Katherine had custody of all three
children 100% of the time)
.67 (Percentage of time Katherine will have
physical custody as determined by the
superior court)
$5,732.81 (Jamess obligation)
$20,197.40 (Katherines adjusted annual income)
.33 (Rule 90.3(a) multiplier for three
children)
$6,665.14 (Amount Katherine would owe under Rule
90.3(a) if James had custody of all three
children 100% of the time)
.33 (Percentage of time James will have
physical custody as determined by the
superior court)
$2,221.49 (Katherines obligation)
The superior court then offset these calculations to determine
the total child support owed and the monthly support payment:
$5,732.81 (Jamess obligation)
- $2,221.49 (Katherines obligation)
$3,511.32 (Difference in obligations)
1.5 (Rule 90.3(b) multiplier)
$5,266.98 (Annual amount James is to pay
Katherine)
12 (Months)
$438.92 (Jamess monthly support payment)
18 Because Shane will continue to reside almost entirely
with James and because the two younger children may potentially
spend much of their summer vacation with James, the 33.33% figure
used by the court may significantly deviate from the percentage
of time James will have the children.
19 Bunn, 934 P.2d at 758 (citing Charlesworth v. State,
Child Support Enforcement Div. ex rel. Charlesworth, 779 P.2d
792, 793-94 (Alaska 1989)).
20 Because Rule 90.3 was amended after the superior court
calculated child support, we briefly consider whether the change
in the method of calculation may alter Jamess support obligation
by more than fifteen percent. Assuming for sake of discussion no
change in the underlying facts concerning custody, it appears the
fifteen percent threshold will be met. Under Rule 90.3(a),
applying the custody figures the superior court relied on, Jamess
obligation will be $249.66:
$26,056.90 (Jamess adjusted annual income)
.27 (Rule 90.3(a) multiplier, used because
Katherine has primary physical custody of two
children)
$7,035.36 (Total yearly child support James owes
Katherine)
$20,197.40 (Katherines adjusted annual income)
.20 (Rule 90.3(a) multiplier, used because
James has primary physical custody of one child)
$4,039.48 (Total yearly child support Katherine
owes James)
$7,035.36 (Jamess obligation)
- $4,039.48 (Katherines obligation)
$2,995.88 (Net Amount James owes Katherine per
year)
12 (Months)
$249.66 (Jamess monthly support payment)
21 Compare monthly support payment calculations
accompanying notes 17 & 20.
