You can
search the entire site.
or go to the recent opinions, or the chronological or subject indices.
Smith v. Weekley (7/18/2003) sp-5709
Smith v. Weekley (7/18/2003) sp-5709
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
STACIE L. SMITH, )
) Supreme Court No. S-10600
Appellant, )
) Superior Court No.
v. ) 3AN-01-9685 CI
)
RONALD D. WEEKLEY, ) O P I N I O N
)
Appellee. ) [No. 5709 - July 18,
2003]
________________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Peter A. Michalski, Judge.
Appearances: Gayle J. Brown, Anchorage, for
Appellant. David S. Houston, Houston &
Houston, P.C., Anchorage, for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
CARPENETI, Justice.
I. INTRODUCTION
I. In this action for child custody, the superior court
awarded interim custody to the father and later adopted the
interim custody arrangement as the final one. The mother
contests this decision, maintaining that the court applied an
incorrect standard in reaching its final custody determination
and considered one statutory best interests factor to the
exclusion of all others. Because we agree that the superior
court failed to apply the correct standard to its child custody
determination and that it erroneously applied the statutory best
interests factors, we remand for a new custody determination.
II. FACTS AND PROCEEDINGS
A. Facts
The parents in this child custody action, Ronald
Weekley and Stacie Siver (formerly Smith), were never married but
had one child together, Dalton. For at least two years before
this action was initiated, Dalton alternated between each parents
home on a weekly basis. At the time of trial, Dalton was six
years old and was in the middle of his first year of
kindergarten, and both of his parents had married other partners.
Ronald Weekley and his wife, Daltons stepmother, had an almost
two-year-old daughter who lived with them, and they were
expecting a second child. Stacie Siver had an eight-year-old
daughter who lived primarily with her father and visited with
Stacie and her husband on certain weekends of each month. For
most of Daltons life, both of his parents had resided in
Anchorage.
The Sivers moved to Wasilla at some point in 2001.
Siver planned to enroll Dalton in a private school there, while
Weekley anticipated that Dalton would attend public school in
Anchorage. Prior to the move, the parties had not reached an
agreement regarding Daltons future placement. The parties were
also in disagreement regarding Daltons medical needs. In August
of 2001 Siver took Dalton to the Alaska Native Medical Center to
begin treatment for his toe walking. According to his doctor at
that time, Dalton was unable to walk with his feet flat and his
condition was unlikely to remedy itself. The doctor recommended
serial casting, which consists of a walking cast in which the
angle of the ankle is changed slowly over time to stretch the
tight ankle muscles. The following month, Weekley took Dalton to
another doctor for an explanation of the casting. The second
doctor expressed the opinion that the two castings which had
already been done had sufficiently stretched the appropriate
muscle and that no further casting was needed at that time.
During the course of the proceedings, Siver emphasized the
importance of her overseeing Daltons care, while Weekley
maintained that Siver had overstated Daltons medical needs and
that, whatever they were, he was equally able to meet them.
B. Proceedings
On August 14, 2001, without informing Siver of his
plans, Weekley filed a complaint for permanent custody and a
motion for interim custody. In the accompanying affidavit,
Weekley emphasized Sivers decision to move to Wasilla and the
disagreement between Siver and Weekley as to where Dalton should
be enrolled in school as bases on which the court should place
Dalton with him. Siver did not receive service of these
documents until August 24, when her attorney contacted Weekleys
attorney and arranged to accept service of the complaint and
motion on Sivers behalf.
On August 29, not yet having received a reply from
Siver, Superior Court Judge Peter A. Michalski granted Weekleys
motion for interim custody, ordering visitation for Siver every
other weekend and requiring her to begin paying child support.
The interim custody order was sent to Siver and Weekley by U.S.
mail on August 30. That same day, prior to receiving the courts
order, Siver filed an opposition to Weekleys request for interim
custody and cross-petitioned for placement with her. Citing
Daltons medical needs and her status as a stay-at-home mom, Siver
maintained that the court should grant her interim custody and
provide Weekley with visitation three weekends per month. She
also requested that the court hold an evidentiary hearing on the
matter.
On September 4, 2001, after receiving the courts August
29 order granting Weekley interim custody, Siver filed a motion
to set the order aside on the ground that Siver had not been
timely served with the complaint or motion for interim custody.
As Siver explained, she had had custody of the minor child and
her opposition to the motion which was timely filed was never
considered by the court. In her motion asking the court to set
aside its interim order, Siver maintained: The order was
improvidently entered prior to defendants ten day time to respond
to the underlying motion. Defendant and her counsel were not
served with the Complaint or other documents until August 24,
2001, in the afternoon. The opposition was filed on August 30,
2001, well within the 10 day response period.
Sivers opposition to Weekleys motion and request to
have the order set aside were followed on September 5 by a reply
in which Weekley argued that the interim order should remain in
place and requested that the court issue a writ of assistance to
facilitate the transfer of custody from Siver to him. In his
reply, Weekley contended that Siver had subjected Dalton to
medical treatment which may have been unnecessary, that she had
unilaterally cut off all contact between Weekley and Dalton, that
she had falsely alleged domestic violence against Weekley to
avoid transferring custody of Dalton, and that when these steps
failed to prevent Weekley from obtaining interim custody, she
fled with the child. Additionally, Weekley contended that Siver
had a history of involvement with alcohol and violent behavior.
That same day, the court issued a Writ of Assistance to Weekley
and denied Sivers motion to set aside the interim custody order.
The court set a hearing date of September 18 to further address
the issue of interim custody.
Siver then filed a motion requesting expedited
reconsideration of the courts decision to leave the interim
custody order in place until the hearing. Siver argued that
Weekley had minimized Daltons medical condition in his affidavit
and attached copies of Daltons medical records to demonstrate
that Dalton is casted on both legs and needs constant medical
care and treatment from the Alaska Native Medical Center. She
contended that because she had been his primary care provider
with respect to these treatments and was not employed outside the
home, it would be contrary to Daltons best interests to leave him
in his fathers care. Siver also stated that she did not believe
that her opposition had been fully considered by the court and
expressed concern about her sons medical needs not being taken
seriously and about his being enrolled in public school in
Anchorage. On September 12 the court denied Sivers motion to
reconsider his September 5 order, explaining that the motion does
not state a basis to modify the order of September 5, 2001 and
that [n]othing in the material submitted excludes the probability
that the fathers home can provide adequate follow through on the
childs care.
An evidentiary hearing was held on September 18. The
court heard approximately two hours of testimony, primarily from
Weekley and Siver, regarding the allegations made by each in
their respective affidavits. After making some findings
regarding Daltons situation, the court reaffirmed its earlier
decision to grant Weekley interim legal and physical custody with
weekend and holiday visitation for Siver. According to the
court, there is more stability leaving Dalton in the school that
hes in, primarily in the household that hes in.
Upon motion of the parties, the superior court
appointed John Hanscom as custody investigator. Hanscom spoke
with both parents and with Dalton, reporting that Dalton did not
believe his father and stepmother were being truthful in their
statements about his mother, that he had witnessed his stepmother
strike his father with a pool stick and that he wanted to live
primarily with his mother and was angry his father would not let
him stay with her. According to Hanscom, Dalton was sad he
cannot be with his mother. Hanscom visited both homes and found
each of them to be within community standards. He recounted both
parents histories of involvement with the legal system, which
included several domestic violence complaints, most of which had
been dismissed. Finally, Hanscom went through each of the eight
statutory best interests factors outlined in AS 25.24.150(c) and
concluded that he believed it would be in Daltons best interest
for him to be placed primarily with his mother and to have
weekend and holiday visitation with his father.
Trial took place on February 19, 2002. At the close of
the hearing, the court explained that it disagreed with Custody
Investigator Hanscoms recommendations, stating that it reached
this decision, which is contrary to the recommendation of the
custody investigator, partly because [it], in evaluating his
ideas about what the facts mean, [came] to different conclusions.
After discussing these discrepancies, the court concluded that it
did not find them, on a total balance, to be a justification to
change the current situation, which [it found] to be relatively
stable, though imperfect. The court ultimately held that Weekley
should retain primary legal and physical custody and Siver should
be permitted visitation three weekends per month and every other
week during the summer.
Siver appeals.
III. STANDARD OF REVIEW
Whether the superior court applied the correct standard
of review is a question of law we review de novo, determining the
rule of law in light of precedent, reason, and policy.1
While the trial court retains broad discretion in
making decisions regarding child custody,2 its custody
determination will be set aside where there has been an abuse of
discretion or where the findings of fact are clearly erroneous.3
Abuse of discretion is established if the trial 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.4 A factual finding will be deemed clearly erroneous only
if it leaves us with a definite and firm conviction on the
entire record that a mistake has been made, even though there may
be evidence to support the finding. 5 In reaching a final child
custody determination, a trial court is required to make findings
on the various statutory factors which are sufficient to make the
basis of its decision susceptible to review.6
IV. DISCUSSION
The Final Custody Determination
Siver raises several issues in her attack on the
superior courts final custody determination. Two are
dispositive, and in several respects meld into each other. She
argues first that the superior court improperly treated her
motion for custody as an action for modification of an existing
order, pointing to the courts statement that she had not shown a
sufficient justification to change the current situation.
Second, she argues that when the court made its final decision,
it failed to properly consider the statutory best interests
factors. We consider each argument in turn.
1. The decision to grant sole legal custody and primary
physical custody to Weekley
1. As noted, Siver first argues that the court erred by
treating Weekleys motion for custody as an action for
modification of an existing custody order rather than as an
initial custody determination. She maintains that by stating in
its final decision that Siver had not demonstrated a sufficient
justification to change the current situation, that is, the one
created by its interim custody order, the court treated the
proceeding as one for modification. Siver argues:
Since she received no hearing on the motion
that deprived her of custody originally, (or
even notice of the existence of such a motion
prior to its being improperly granted by the
lower court), it would seem clear that the
lower court was not interested in
consideration of evidence but only in
maintaining the status quo during the
pendency of the lower court proceedings.
This appeal is based on the extension of that
judicial attitude throughout the proceedings
and its application to the lower courts final
ruling in this case.
In response, Weekley contends that the courts language
did nothing more than state the obvious fact that awarding
custody to Mr. Weekley meant that the current situation would
remain as is, and that appellants argument, premised on a single
phrase of dicta, failed to show that the court based its ruling
on the changed circumstances doctrine. Weekley concludes that
the courts findings and conclusions do not suggest in any way
that he limited his consideration of the evidence to changed
circumstances.
We agree with Siver that the proceedings were flawed
from the outset, and that by leaving the situation in place
without evaluating which placement would be in Daltons best
interests, the trial court applied an inappropriate standard in
reaching its ultimate decision. It is undisputed that the court
ruled on Weekleys motion for interim custody without having
received a reply from Siver and prior to the time having run for
her to reply. It is also clear that the court denied Sivers
motion to set aside the interim order pending a hearing. While
it did grant Sivers request to hold an evidentiary hearing, it
does not appear to have conducted a thorough best interests
analysis at the close of that hearing, but instead seems to have
relied almost exclusively on the stability created by its earlier
decision to justify leaving Dalton in the primary custody of his
father.
At the close of the evidentiary hearing held on
September 18, the court made the following findings:
This is a real hard case because of a couple
of things. One is, there is some testimony
that there is no physical violence. I dont
think I fully accept that notion. There is
an anger on the mothers side, on the other
hand, which is [I] suppose in part justified
by any kind of behavior by dad that is
equally harmful, however. I rarely see
witnesses any more angry than mom has
presented herself to be, and that is an
awfully hard thing to hide from a child, and
really feeds into how the child feels about
the world and life and fair play and all
these things. So there are a lot of things
where both of you need to work on how you
relate to the world, to each other, and to
Dalton. In the best interests of the child,
you look at a lot of factors and counsel have
talked about a lot of them. Stability,
ability to try to promote [a] relationship
with the other parent, the capacity to care
for them, the existence of domestic violence.
A lot of these things that are to be
considered and summed up. And in summary,
there are things going for each of you and
against each of you on these things. At this
point, however, I think that there is more
stability leaving Dalton in the school that
hes in, primarily in the household that hes
in, so that will be the courts order.
(Emphasis added.) Along the same lines, at the close of the
custody hearing, the court considered various arguments offered
by Siver and concluded that it did not find them on a total
balance to be a justification to change the current situation
which [it found] to be relatively stable though imperfect. It is
difficult to escape the impression that the superior court
approached the final custody order, as it had the initial custody
hearing, with the sense that Siver bore the burden of showing
changed circumstances in order to justify changing Daltons
placement. If the court did so, it erred in two respects: First,
Siver did not bear any burden of showing changed circumstances at
either hearing.7 Second, the original placement of Dalton with
his father had resulted from an ex parte order that had been
issued with no notice to Siver nor any opportunity for her to be
heard before it issued. That placement did not create a hurdle
for Siver to overcome.
The stability developed during the period between the
grant of interim custody and the courts final custody decision
may be a relevant factor in the courts analysis, but it cannot be
the primary basis for the courts decision. In Velasquez v.
Velasquez,8 we held that while the superior court may take into
account as a factor the period of time between the entry of an
initial and a final custody award, there is no requirement that
the court do so, nor may the court accord a presumptive
preference to the parent who had interim custody.9 To do so
would deprive the noncustodial parent of the benefit of a
decision based on a fully developed record.10 To do so under the
circumstances of this case would be even more problematic, since
the courts August 29 interim custody order was entered before
Siver had a chance to reply to Weekleys allegations and its
September 18 interim custody order left its initial order in
place without a substantive discussion of other relevant factors.
In reaching its decision at the close of the September
18 hearing regarding interim custody, the superior court
mentioned some of the considerations relevant to a best interests
determination. However, its conclusion indicates that it was
primarily interested in maintaining stability in Daltons life,
and that Dalton should therefore remain with his father. While
we agree that stability is important, especially in the life of a
young child, it cannot be the paramount consideration under
circumstances such as these. Prior to the filing of Weekleys
motion for interim and permanent custody, Dalton had evenly split
his time between his mother and father. The hearing took place
within three weeks of the date the motion was filed. By ordering
that Dalton remain in his fathers custody because of the
stability it affords, the court necessarily affirmed its initial
order, which itself was erroneously entered before Siver had been
given an opportunity to reply. Given this procedural deficiency,
we can neither sanction the entry of the interim custody order
nor allow it, de facto, to stand as an order requiring Siver to
show changed circumstances in order to attack.
The final custody order does not clearly set out what
standard the court applied in its decision. The only glimpse
provided into the courts thought process was the reference to the
absence of a justification to change the current situation.
Because this statement reflects the use of what is essentially a
presumptive preference for Weekley based on the courts interim
custody decision, we vacate the courts final order.
2. The statutory best interests factors
Siver makes two main arguments with respect to this
issue. First, she maintains that the court essentially ignored
all factors but one, the desire and ability of each parent to
allow an open and loving frequent relationship between the child
and the other parent, thereby failing to properly consider the
statutory best interests factors. Next, she claims that it was
an abuse of discretion not to place specific emphasis on the
seventh factor evidence of domestic violence, child abuse, or
child neglect.
Decisions regarding the award of child custody are
governed by AS 25.20.060, which provides in relevant part:
(a) If there is a dispute over child custody,
either parent may petition the superior court
for resolution of the matter under AS
25.20.060-25.20.130. The court shall award
custody on the basis of the best interests of
the child. In determining the best interests
of the child, the court shall consider all
relevant factors including those factors
enumerated in AS 25.24.150(c).
Alaska Statute 25.24.150(c) sets out the factors a court should
consider in determining the best interests of the child. These
factors 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 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.
Whether involved in an initial or final child custody
determination, a parent desiring custody must demonstrate that
placement of the child with him or her would be in the childs
best interests.11 In undertaking this best interests analysis,
the trial court need not specifically address the statutory
factors detailed in AS 25.24.150(c), and make explicit ultimate
findings that the best interests of the children require the
custodial disposition reached, but its findings must either give
us a clear indication of the factors which the superior court
considered important in exercising its discretion or allow us to
glean from the record what considerations were involved.12
The court is encouraged to consider these eight
statutory factors, as well as other factors that the court
considers pertinent in deciding what placement is in a childs
best interests.13 Siver maintains that the trial court considered
one of these factors to the exclusion of all others the desire
and ability of each parent to allow an open and loving frequent
relationship between the child and the other parent.14 In doing
so, she argues, the court essentially ignored factors such as the
childs needs, each parents ability to meet those needs, and the
love and affection existing between the child and each parent.
Siver also argues that the court failed to consider the seventh
factor, which discusses the impact of evidence of domestic
violence or child abuse. She claims that the record contained
ample evidence of Ronald Weekleys temper, his physical and verbal
abuse toward both Ms. Siver and the child and his prior history
of domestic violence directed against Ms. Siver. Making specific
findings only on her ability to foster an open relationship with
Weekley, Siver maintains that the trial court appears to have
used Ms. Siver[s] decision to move to the Mat-Su Valley, some
forty miles from Anchorage, her temporary denial of visitation
based on concerns over her childs health care, and her apparent
inability to hide her feelings on the witness stand as the basis
for its decision. According to Siver, this amounts to the
placement of disproportionate weight on one factor while ignoring
other relevant factors, and therefore constitutes an abuse of
discretion.
Weekley responds by cataloguing each factor and the
evidence before the court which supported it. He contends that
the trial court considered this evidence in making its findings
of fact and conclusions of law under the statutory best interest
factors. Regarding Sivers claim that the court afforded AS
25.24.150(c)(6) too much weight, Weekley maintains that the
significant consideration given to this factor by the court was
justified by the courts express finding that Sivers expressions
did not give the court any confidence that she would contribute
to making it easy for the father to have a continuing
relationship with the child. Finally, Weekley justifies the
courts failure to address the issue of domestic violence or child
abuse by noting that the custody investigator reported that there
was no evidence of domestic violence in either parents home.
The court made only limited findings. First, regarding
Daltons expression of preference to live with his mother, the
court found that this was based not on a genuine desire to live
with his mother or, as Hanscom posited, an expression of his love
and affection for his mother, but as a way of helping his mother
because she was hurt by these proceedings.15 Next, regarding
Daltons expression of meanness in dads home and his experiences
with other hurtful and inappropriate conduct, the court found
that these things were harmful and . . . shouldnt occur.
Finally, on the issues raised by Siver regarding Weekleys
unwillingness to foster a relationship between her and her son,
the court found that Weekleys exclusion of Siver from a school
conference, his refusal to allow Dalton to go to a Halloween
event with his mother, and his screening of Sivers calls were all
reasonable.16 The court made no additional findings, nor did it
make any mention of AS 25.24.150(c) or specifically in what way
Daltons best interests would be better met by placement with his
father.
In Borchgrevink v. Borchgrevink,17 we held that in
making a final child custody determination, a trial court need
not specifically address the statutory factors detailed in AS
25.24.150(c), and make explicit ultimate findings that the best
interests of the children require the custodial disposition
reached, so long as its findings either give us a clear
indication of the factors which the superior court considered
important in exercising its discretion or allow us to glean from
the record what considerations were involved.18 We went on to
explain that it was not error for the trial court to fail to
expressly address factors not disputed by the parties and those
which did not favor the parent to whom custody was denied.19
However, in Borchgrevink, unlike in the present case, there was
no significant dispute involving most of the statutory factors
and the court made extensive findings regarding all relevant
factors and stated the legal conclusions underlying its decision.20
Aside from AS 25.24.150(c)(6), it is not clear which
factors the court found important to this inquiry or why. As in
Park v. Park,21 in which we held that the superior court had erred
in considering only one factor to the exclusion of all others,
while the superior courts findings clearly indicate one statutory
factor that the court considered important to its analysis, they
provide no meaningful insight into what the court thought of
other factors that undisputedly had relevance under the evidence
actually presented at trial or whether the court even considered
other relevant factors.22
There is no indication of the courts views on Daltons
medical, emotional, educational, or social needs, on which parent
can better meet those needs, on Daltons relationships with his
stepparents or siblings, on his fathers admitted temper, or on
which parent provides the more appropriate home environment,
despite each of these issues having been raised by the parties at
trial. While the court need not make findings on every possible
issue, it should at least make findings on those which were
relevant and which ultimately influenced its decision. Because
it is not clear to us which factors the superior court considered
important or what other considerations were involved in reaching
its decision, we remand for the superior court to make specific
findings on all relevant factors as required by AS 25.24.150(c).
Upon remand, the parties should be allowed to present updated
evidence to the court.23
V. CONCLUSION
Because it was error to accord a presumptive preference
to Weekley based on the interim custody decision and because the
court relied on one statutory best interests factor to the
exclusion of all others, we REMAND for a new determination, based
on all of the currently available evidence, of which placement
will be in Daltons best interests.
_______________________________
1 Barrett v. Alguire, 35 P.3d 1, 5 (Alaska 2001).
2 Hamilton v. Hamilton, 42 P.3d 1107, 1111 (Alaska 2002).
3 Id.
4 Id.
5 Duffus v. Duffus, 932 P.2d 777, 779 (Alaska 1997)
(quoting Brosnan v. Brosnan, 817 P.2d 478, 480 (Alaska 1991)).
6 Id.
7 Barrett v. Alguire, 35 P.3d 1, 5 (Alaska 2001)
(explaining that existing child custody or visitation award may
be modified under certain circumstances; where no such award has
yet been entered, no basis exists for modification).
8 38 P.3d 1143 (Alaska 2002).
9 Id. at 1148-49.
10 Id. at 1149. See also McDanold v. McDanold, 718 P.2d
467, 470 n.4 (Alaska 1986) (stating that custodial parent may not
be given presumptive preference in final custody disposition so
as to prevent pretrial custody maneuverings); Carle v. Carle, 503
P.2d 1050, 1053 n.6 (Alaska 1972) (observing that while there
might be some preference for leaving child in care of parent who
most recently had custody, this court would not establish such
presumption lest it lead to pre-hearing maneuvering for
possession of the child), overruled on other grounds by statute
as noted in Deivert v. Oseira, 628 P.2d 575, 579 (Alaska 1981).
11 Velasquez, 38 P.3d at 1146.
12 Borchgrevink v. Borchgrevink, 941 P.2d 132, 139-40
(Alaska 1997).
13 AS 25.24.150(c).
14 AS. 25.24.150(c)(6).
15 This finding is related to AS 25.24.150(c)(3), the
childs preference if the child is of sufficient age and capacity
to form a preference.
16 These latter three findings are most closely related to
AS 25.24.150(c)(6), the desire and ability of each parent to
allow an open and loving frequent relationship between the child
and the other parent.
17 941 P.2d 132 (Alaska 1997).
18 Id. at 139-40.
19 Id. at 138.
20 Id. at 135-37.
21 986 P.2d 205 (Alaska 1999).
22 Id. at 208.
23 Siver also challenges some of the courts factual
findings as clearly erroneous. Because we remand for
consideration of all currently available evidence, in which new
factual findings will have to be made, we do not consider Sivers
challenges to factual findings made in the course of the first
trial.
