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Chase v. Chase (4/1/2005) sp-5881
Chase v. Chase (4/1/2005) sp-5881
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
ERNEST M. CHASE, )
) Supreme Court No. S-11447
Appellant, )
) Superior Court No.
v. ) 3AN-02-08192 CI
)
JUDY A. CHASE, ) O P I N I O N
)
Appellee. ) [No. 5881 - April 1, 2005]
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, William F. Morse, Judge.
Appearances: Charles J. Gunther, Law Office of Charles J.
Gunther, Anchorage, for Appellant. Sarah J. Tugman,
Anchorage, for Appellee.
Before: Bryner, Chief Justice, Matthews, Eastaugh, Fabe, and
Carpeneti, Justices.
FABE, Justice.
I. INTRODUCTION
Judy and Ernest Chase began living together in 1986. They had three
children before marrying in 1996. The couple divorced in 2004. The court granted sole
physical custody of the couple?s youngest son to Judy. The court also characterized certain
pieces of property as marital property for purposes of distribution. Ernest Chase appeals
these custody and property determinations. Because the superior court did not abuse its
discretion, we affirm the superior court?s custody decision and property division.
II. FACTS AND PROCEEDINGS
A. Custody
Judy and Ernest Chase met in February of 1986 when Judy was sixteen years
old and Ernest was forty-one. Judy dropped out of high school after meeting Ernest and
moved in with Ernest in June 1986. The couple lived in a rented house in Anvik. Their
first child, Charity, was born on July 14, 1987. Their second child, Chastity, was born on
January 19, 1989. Their youngest child, Cody, was born on August 13, 1994. Judy and
Ernest married on February 14, 1996.
Judy and Ernest lived together until June 1998, when Ernest was incarcerated
for growing marijuana. Prior to his incarceration, Ernest worked in gold mining, fishing,
hauling fish eggs, and as a pilot. Aside from helping Ernest occasionally, Judy did not work
outside the home. Judy was the primary caregiver for the children.
When Ernest went to prison, the family home was seized and forfeited, and
Judy and the children moved into a mobile home. Judy began to abuse alcohol and her
relationship with her children deteriorated. At the divorce trial, Judy testified that her life
?f[e]ll apart? while Ernest was in prison. A family friend arranged for the children to live
during this time with the Riggs family, who were acquaintances of the Chases. The
children stayed with the Riggs family from August 1999 through June 2002. Judy testified
that although she did not visit the children when they first went to live with the Riggs
family, after six months had passed she began to visit them frequently and occasionally
spent the night. She also testified that she talked to them regularly on the phone
throughout their stay.
Ernest was released from prison in December 2001 and stayed in a
transitional facility until March 2002. In June 2002 Cody went to live with Judy and spent
most weekends with Ernest. Charity and Chastity went to live with Ernest. Judy filed for
divorce on June 12, 2002 and sought legal and primary physical custody of the children.
During the custody proceedings, a state custody investigator prepared a
custody investigation report for the court. The report included custody and visitation
recommendations. The investigator conducted interviews with Judy, Ernest, the three
children, and Cody?s teacher. All three children expressed a desire to live with their father.
The girls attributed this preference to their mother?s drinking. Citing Judy?s alcohol
abuse, the investigator recommended that sole legal and primary physical custody of all
three children be granted to Ernest. The investigator also recommended limiting Judy to
daytime visits ?until she completes a substance abuse assessment and follows the treatment
suggested by the provider.?
After receiving the custody investigator?s report, Judy voluntarily underwent
an alcohol assessment. Based on a review of Judy?s driving record and urinalysis tests, the
assessment concluded that Judy was not currently abusing alcohol and did not recommend
any type of treatment. At the time of the trial, Judy had worked for several years, first at
Cornell Corrections and then at Evergreen Aviation. Judy testified that both Cornell
Corrections and Evergreen Aviation required drug and alcohol tests for employees and that
she had always passed them.
Cody?s report cards and testimony at the trial reflected that Cody was doing
well in school while living with Judy. A friend of Judy?s testified that on weekends when
Cody stayed with Ernest, he was usually in the care of Charity and Chastity, and that
Ernest did not provide much supervision for the children.
Superior Court Judge William F. Morse held a three-day bench trial
beginning on November 4, 2003 to address the parties? custody and property claims. The
superior court issued a decree of divorce on March 11, 2004 and awarded joint legal
custody of all three children to both parents. Ernest received primary physical custody of
Charity and Chastity. Judy received primary physical custody of Cody. The custody order
incorporated by reference Judge Morse?s oral findings articulated on the record on
November 7, 2003. Ernest filed this appeal.
B. Property
The superior court also issued findings of fact and conclusions of law
regarding the property to be divided between Ernest and Judy. Ernest appeals the superior
court?s characterization of a number of pieces of property as marital. Ernest does not
appeal the court?s valuation of the property. The properties that Ernest contends the
superior court erroneously categorized as marital include a home and lot in Anvik, a cabin
in Talkeetna, various mining equipment, a jet boat, a Cessna 206 airplane, and a Maule
airplane and equipment. Each piece of property is discussed in Part III.C below.
III. DISCUSSION
A. Standard of Review
This court reviews the superior court?s determination in child custody matters
for abuse of discretion. ?An abuse of discretion is established if the superior court has
considered improper factors in making its custody determination, has failed to consider
statutorily mandated factors, or has assigned disproportionate weight to particular statutory
factors while ignoring others.? The superior court?s factual findings are reviewed under
the clearly erroneous standard.
We review the superior court?s determination of what property is available for
distribution in a divorce proceeding for abuse of discretion. We disturb a trial court?s
findings that parties intended to treat property as marital only if they are clearly erroneous.
We review the superior court?s equitable allocation of property for abuse of discretion and
reverse if the trial court?s allocation is ?clearly unjust.?
B. Custody of Cody
Ernest argues that the superior court abused its discretion by awarding
primary physical custody of Cody to Judy despite the custody investigator?s
recommendation that Ernest should have primary physical custody of all three children.
Ernest complains that the superior court simply ignored the custody investigator?s report
without explaining why the court chose to disregard the report. Ernest also argues that the
court did not address adequately the factors required under AS 25.24.150, making it
impossible to determine the basis for the court?s decision.
We have previously held that the trial court is not obligated to adopt a
custody investigator?s recommendations. In Evans v. Evans, we rejected the mother?s
claim that the trial court erred in failing to accord more credit to the testimony of the
?neutral? custody investigator than that of other ?biased? witnesses. We reasoned that
?the court ordinarily has no obligation to accept expert testimony when it finds other
evidence more persuasive; nor is the court bound to favor the testimony of an ostensibly
neutral witness who is unconvincing over that of a witness who testifies convincingly
despite circumstances suggesting potential bias.? As our reasoning in Evans suggests, a
custody investigator?s report is just one of many pieces of evidence that is available to a trial
court in the resolution of a custody dispute. As with other types of evidence, it is within
the trial court?s discretion to give the report the amount of weight the court deems
appropriate. The trial court is under no obligation to make specific findings regarding the
report as long as the court considers the appropriate statutory factors when making custody
determinations.
We therefore conclude that the superior court did not abuse its discretion in
this case by reaching a decision that contradicted the custody investigator?s
recommendation or by declining to discuss the report explicitly. We next examine whether
the superior court abused its discretion in its application of the statutory custody factors.
The superior court?s oral findings indicate that the court weighed the relevant
statutory custody factors outlined in AS 25.24.150. We have consistently held that ?the
trial court need not refer to all the statutory factors in explaining its custody decision. . . .
In other words, ?[e]xpress mention of each factor is not required.? ? Here, the superior
court?s oral findings reflect that the court did weigh the relevant factors, even if it did not
explicitly refer to the statute when doing so.
For instance, the superior court considered the physical, emotional, mental,
religious, and social needs of the children, as well as the capability and desire of each parent
to meet those needs, when it examined Judy?s decision to leave the children with the
Riggs family. The custody investigator had characterized this decision as evidence that
?Mother failed to provide for the children during Father?s incarceration.? The superior
court judge disagreed, remarking that the decision that ?was probably the hardest to make
but showed a strength of character at some level was [Judy?s] decision to let the Riggs take
the children. I think . . . that shows [that she was] putting [the] children first . . . .?
The superior court also considered the impact of substance abuse on the
children. The trial court found that Judy did abuse alcohol while Ernest was in jail but
concluded that Judy had resolved her problems with alcohol. Similarly, the superior court
considered the parties? willingness to foster an open relationship between the children and
the other parent. In setting up a visitation schedule, the trial court observed that Ernest
had probably influenced the children?s perception of Judy in a negative manner.
The superior court?s comments indicate that the factor the court weighed
most heavily was the need for stability and continuity in Cody?s life. In an exchange with
Ernest, the trial judge noted, ?it seems to me that [Ernest and Judy] have come to this
arrangement regarding the children where, clearly, Cody is being shared back and forth.
He seems to be doing fine and I don?t see much reason to change that . . . .? In addition,
when setting up a visitation schedule, the trial court considered the need for Cody to have
meaningful relationships with his sisters.
Because the superior court?s consideration of the statutory factors can be
discerned from its oral findings and from the record, we conclude that the superior court
did not abuse its discretion when it granted sole physical custody of Cody to Judy.
C. The Superior Court?s Designation of Various Pieces of Property as Marital
Property
Ernest claims that the superior court erred in finding that various pieces of
property were marital property. Ernest?s principal argument is that he acquired all of the
items relevant to this appeal before the parties were legally married. Ernest also argues that
the superior court did not explain why it categorized the property as marital property.
Because the decision to categorize the property as marital is sufficiently supported by the
superior court?s findings and by the record, we affirm the superior court?s findings
regarding the property.
Property acquired by a couple prior to marriage may be considered marital
property when the property was acquired during premarital cohabitation. ?[S]o long as the
parties do marry, the trial court is free to consider the parties? entire relationship, including
any period(s) of premarital cohabitation, in making its property division under AS
25.24.160(a)(4), so long as the court observes the distinction which AS 25.24.160(a)(4)
draws between assets acquired prior to and during coverture.? With the exception of the
home in Anvik, Ernest does not claim that he acquired any of the properties before the
parties began cohabiting in 1986. Implicit in the superior court?s reasoning is the
conclusion that the coverture period commenced when Judy and Ernest began living
together in 1986. Under the rule articulated in Murray and Faulkner, the superior court
appropriately deemed these properties marital by virtue of the fact that the parties lived
together and later married. We discuss the trial court?s findings with respect to each of
the properties below.
1. Anvik home and lot
The trial court determined that the Anvik house and lot were part of the
marital estate and awarded them to Ernest. In his initial disclosures, Ernest stated that he
acquired the house in Anvik in 1983. At the trial, Ernest testified that he agreed to buy the
house from his nephew around 1978. Judy testified that she and Ernest had bought the
house together in 1989 or 1990. According to Judy?s testimony, the couple used the Anvik
house as their permanent home although they spent winters in Anchorage. Judy testified
that she rented out the house in Anvik while Ernest was in prison, listing herself as the
owner.
The trial court did not make a determination about when the couple
purchased the house; therefore, it is possible that Ernest purchased the house before the
coverture period, which began when the couple began living together in 1986. But it does
not matter whether Ernest purchased the house before the coverture period began, because
the trial court noted that the couple remodeled the home and found that ?[t]he parties
lived in the home as a family.?
In Cox v. Cox, we stated that ?[s]eparate property becomes marital . . . upon a
showing that the parties intended to treat the property as marital.? Factors to be
considered by a trial court in making this determination include: (1) the use of the property
as the parties? personal residence, (2) the ongoing maintenance and management of the
property by both parties, (3) placing the title of the property in joint ownership, and (4)
whether the non-titled owner?s credit has been used to improve the property. It is not
necessary for all four factors to be present in order for the court to find that the property
was marital property. Under the standard set forth in Cox, evidence that the couple had
improved the home and lived in it together was sufficient for the superior court to
determine that the home was marital property, even accepting Ernest?s contention that he
acquired the home prior to the period of cohabitation.
2. Talkeetna cabin
The superior court determined that a cabin in Talkeetna used by the family
for recreation was marital property and awarded it to Judy. Ernest claims that this home is
not marital property because he began purchasing it in 1994 and had paid it off in full one
month before he married Judy in 1996. Under the standard governing property acquired
during premarital cohabitation that we articulated in Murray and Faulkner, the superior
court did not err when it concluded that property acquired after the parties began living
together in 1986 was marital property. This is true of the cabin in Talkeetna.
Moreover, Judy claims that the couple bought the cabin together and used it
for recreation. She presented evidence at trial that she had paid taxes on the cabin in 1998.
The superior court found that the family had used the Talkeetna cabin for recreation. The
superior court also found that Judy and Ernest originally put the cabin in Cody?s name and
that Ernest had acted on Cody?s behalf to quitclaim the cabin back to himself without
Judy?s knowledge in 2002. The superior court concluded that ?[p]lacing [the cabin] in
Cody?s name was merely a convenience and a reflection that it was a family asset eventually
to be passed on to the couple?s children.? These findings were supported by the record and
were not clearly erroneous.
3. Mining equipment
A number of pieces of equipment from the family?s gold mining endeavors
are also in dispute. The superior court found that the family?s interest in the mine itself
did not have any value at the time of the trial, but that some of the equipment left at the
mine did have value. The superior court categorized these pieces of equipment as marital
property and awarded them to Ernest. Ernest contests the trial court?s categorization of the
properties as marital.
The superior court?s determination that the mining equipment was marital
property is supported by its finding that Judy raised the children while Ernest worked and
that she sometimes assisted with the gold mine. The superior court wrote, ?Judy was a
superb mother. She raised the children. She did not work outside the home, although she
provided some assistance to the men working at the gold mine when she and the children
were on the site.? The superior court concluded that Ernest?s interest in the mining
operation itself was a marital asset. Although the trial court?s findings regarding the
mining equipment were succinct, the trial court?s determination regarding the mine itself
supports its conclusion that the mining equipment was a marital asset as well.
More importantly, the superior court heard extensive and sometimes
conflicting testimony about when and how the equipment was acquired, but Ernest does
not claim that he bought any of the property prior to 1986. Therefore, the superior court
properly deemed it marital under the pre-marital cohabitation standard set forth in Murray
and Faulkner. Each piece of mining equipment is discussed briefly below.
a. Case 750
Ernest claims that he purchased a Case 750 loader together with his brother
in 1990 or 1991, before he married Judy. Ernest presented testimony from Judy?s brother,
who testified that he remembered seeing the loader at the mine in 1995 and 1996. Judy
claims that the couple purchased the Case 750 in October 1996 and presented tax returns
from 1996 indicating that the couple purchased it that year. Although the superior court
did not determine when the Case 750 was purchased, it is clear that it was purchased
sometime after the couple began living together in 1986.
b. D-8 Caterpillar
Ernest claims that he purchased a D-8 Caterpillar in 1987. According to
Ernest?s testimony at trial, the Caterpillar was in poor condition when Ernest bought it and
he rebuilt it. Judy testified that the couple bought the Caterpillar at a state auction in
Grayling. Again, because the Caterpillar was purchased after 1986, the superior court
properly deemed it marital property.
c. Nodwell
The Nodwell is a piece of equipment that the family used to haul fuel from
the river. Ernest claims that he bought the Nodwell in Palmer in 1994. Judy testified that
the couple bought it together and shipped it to the mine on a barge. As with the other
pieces of mining equipment, there is no dispute that the Nodwell was purchased prior to
1986.
d. Trommel
This piece of equipment was used to mine gold. Ernest testified that he
purchased the trommel around 1988. Judy claims that a photo of the trommel with their
daughters in it when it was new indicates (because of the girls? ages) that the trommel was
purchased after 1988. Because Ernest?s own testimony indicated that he purchased the
trommel sometime after 1986, the trial court properly categorized it as marital property.
e. Hough Loader
Ernest testified that he purchased the Hough loader at a state auction in
Umiat in 1987 or 1988 and that his brother paid to ship it to Nenana. The loader was
used at the gold mine. Again, the trial court properly categorized the loader as marital
property based on Ernest?s own testimony that he bought it after 1986.
4. Jet boat
First Ernest testified that he bought the jet boat, but then testified that ?we
bought? this boat in 1993. Judy testified that they bought the jet boat in 1995 and that
Ernest paid for it. Judy also testified that they improved the boat and used it for fishing as
well as recreation. The superior court determined that the couple acquired the boat in
1993, well after the parties began cohabiting in 1986.
5. Cessna 206
Ernest testified that he purchased the Cessna in 1989 using funds he
obtained from the sale of another plane and money that his brother contributed. He
testified that he painted the plane and used it in his business hauling salmon eggs. Judy
testified that she thought Ernest bought the plane in 1992 or 1993. She testified that ?we
all went and looked at it? before buying it, and that the couple had used the plane during
their marriage. In its findings of fact, the superior court concluded that Ernest bought the
plane in 1981 and concluded that it was a marital asset because the parties used it for
?marital ventures.? Judy claims that the finding regarding the year of purchase was a
typographical error on the part of the superior court. We agree and conclude that the
superior court?s finding that Ernest bought the plane in 1981 was error because Ernest does
not claim to have purchased the airplane before 1989. Because the Cessna was purchased
after 1986 when the parties began living together, the superior court properly characterized
the Cessna as marital property under either party?s version of events.
6. Maule and equipment
Ernest claims the Maule is non-marital property because he is the registered
owner. Ernest testified that he acquired the plane in 1988 or 1989 when the previous
owner told him he could have the plane if he would haul it away. Ernest testified that he
did not pay anything for the airplane body but that his brother paid for the engine. Ernest
also testified that he disassembled the plane to transport it on a boat, and then he rebuilt it.
He testified that Judy helped him transport the plane. Judy testified that the couple used
the Maule during the marriage. Judy argues that she cared for the children while Ernest
repaired the plane. The trial court found that Ernest used marital funds to purchase the
engine and repair the plane and deemed it a marital asset, a finding that Ernest disputes.
Ernest does not claim that he purchased the Maule before 1986, when the cohabitation
period began. Therefore, the superior court properly deemed the airplane marital property
because it was purchased during the coverture period, commencing at the start of the
parties? cohabitation.
IV. CONCLUSION
For these reasons, we AFFIRM the superior court?s decision to award sole
physical custody of Cody to Judy. We also AFFIRM the superior court?s decision to
categorize the Anvik home and lot, Talkeetna cabin, mining equipment, jet boat, Cessna,
and Maule as marital property.
Judy received her GED in 1987.
Ernest contends that Judy participated in the growing operation but was not
arrested because he covered for Judy so that she could care for the children while he was in
prison.
Faulkner v. Goldfuss, 46 P.3d 993, 996 (Alaska 2002).
Id.
Id.
Cox v. Cox, 882 P.2d 909, 913 (Alaska 1994).
Id.
Id. at 914 (internal quotation marks omitted).
At the time of the trial, AS 25.24.150(c) provided that the court
shall determine custody in accordance with the best interests of
the child under AS 25.20.060 ? 25.20.130. In determining the
best interests of the child the court shall consider
(1) the physical, emotional, mental, religious, and
social needs of the child;
(2) the capability and desire of each parent to meet
these needs;
(3) the child?s preference if the child is of sufficient
age and capacity to form a preference;
(4) the love and affection existing between the child
and each parent;
(5) the length of time the child has lived in a stable,
satisfactory environment and the desirability of maintaining
continuity;
(6) the desire and ability of each parent to allow an
open and loving frequent relationship between the child and
the other parent;
(7) any evidence of domestic violence, child abuse,
or child neglect in the proposed custodial household or a
history of violence between the parents;
(8) evidence that substance abuse by either parent or
other members of the household directly affects the emotional
or physical well-being of the child;
(9) other factors that the court considers pertinent.
Evans v. Evans, 869 P.2d 478, 480 (Alaska 1994) (upholding trial court?s decision
to grant custody to father even though custody investigator recommended granting custody to
mother); Nichols v. Mandelin, 790 P.2d 1367, 1373 (Alaska 1990) (affirming trial court?s
decision to grant custody to mother even though trial court?s decision contradicted custody
investigator?s recommendation that parents share custody); see also Meier v. Cloud, 34 P.3d
1274, 1277 (Alaska 2001) (holding that trial court did not err when it declined to appoint
custody investigator even though both parents initially requested one).
869 P.2d at 480.
Id. In the current case, the custody investigator did not testify but her report was
admitted as evidence.
In this respect a custody investigator?s report resembles that of a guardian ad
litem. See Elliott v. Settje, 27 P.3d 317, 322 (Alaska 2001) (upholding decision where trial court
did not follow guardian ad litem?s recommendation); Rooney v. Rooney, 914 P.2d 212, 219
(Alaska 1996) (stating that ?[t]he superior court is not required to follow the [guardian ad
litem?s] recommendation. So long as the superior court?s reasons for rejecting the custody
investigation are not clearly erroneous, the superior court does not abuse its discretion.?). In
contrast, the factual findings of a standing master are binding upon the court unless clearly
erroneous, as stated in Alaska Civil Rule 53(d)(2). Cf. Headlough v. Headlough, 639 P.2d 1010,
1012 (Alaska 1982) (noting that master?s factual findings are binding unless clearly erroneous
under Civil Rule 53(d)(2), but that master?s recommendation as to proper course of action is
not binding upon court).
Virgin v. Virgin, 990 P.2d 1040, 1045 (Alaska 1999) (quoting Park v. Park, 986
P.2d 205, 207 (Alaska 1999)).
AS 25.24.150(c)(1) and (2).
AS 25.24.150(c)(8).
AS 25.24.150(c)(6).
AS 25.24.150(c)(5).
Other relevant factors, such as the love and affection between Cody and his
mother, were not in dispute. The child custody investigator found that Cody had a loving
bond with his mother. The superior court did not consider Cody?s preferences. Cody had
stated to the child custody investigator that he preferred to live with his father, but the
investigator noted that at seven years of age, ?Cody is not mature enough to adequately
consider the ramifications of a preference.?
Murray v. Murray, 788 P.2d 41, 42 (Alaska 1990); see also Faulkner, 46 P.3d at
1003 (instructing trial court to adjust coverture period according to when couple began
cohabiting). AS 25.24.160(a)(4) states that the court may provide
for the division between the parties of their property, including
retirement benefits, whether joint or separate, acquired only
during marriage, in a just manner and without regard to which of
the parties is in fault; however, the court, in making the division,
may invade the property, including retirement benefits, of either
spouse acquired before marriage when the balancing of the
equities between the parties requires it . . . .
The trial court?s reasoning in this case could have been more clear. Under
Alaska Civil Rule 52(a), ?the court shall find the facts specifically and state separately its
conclusions of law . . . .? This rule requires a trial court to provide the supreme court with ?a
clear understanding of the basis for the decision made? so that we may conduct a meaningful
review of the court?s decision-making process. Crittell v. Bingo, 36 P.3d 634, 639 (Alaska 2001)
(internal citations and quotations omitted). While it is desirable for trial courts to make their
reasoning more explicit than the court did in this case, the record is sufficiently detailed to
allow for meaningful review of the decision.
See Murray, 788 P.2d at 42; Faulkner, 46 P.3d at 1003.
882 P.2d at 916.
Id.
See id. (listing factors and remanding to trial court to determine whether house
was marital property, even though couple did not live in it).
Ernest?s testimony was that he purchased it ?[i]n ?80 - - ?88 maybe?? Based on this
testimony, Ernest claims in his brief that he purchased it between 1980 and 1988.
In any event, the superior court noted that even if the plane was a separate asset,
it would invade Ernest?s separate estate ?to reach an equitable distribution of marital assets and
to enable Judy to have a future that does not require her to remain in poverty.? Ernest
contends that this statement was not supported by any reasoning on the part of the trial court.
Because both parties? testimony supports the conclusion that the Cessna was purchased after
the 1986 commencement of the coverture period, we need not reach this issue.
-19- 5881
