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Veselsky v. Veselsky (06/03/2005) sp-5901
Veselsky v. Veselsky (06/03/2005) sp-5901
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
BERNARD VESELSKY, )
) Supreme Court No. S-11560
Appellant, )
) Superior Court No. 3KN-02-00761 CI
v. )
)
PATRICIA VESELSKY, ) O P I N I O N
)
Appellee. ) [No. 5901 - June 3, 2005]
)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Kenai,
Harold M. Brown, Judge.
Appearances: Carol A. Brenckle, Kenai, for
Appellant. Peter F. Mysing, Kenai, for
Appellee.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
FABE, Justice.
I. INTRODUCTION
Bernard Veselsky appeals the trial courts order of
custody and distribution of marital property in his divorce case.
He challenges the superior courts decision to allow Patricia
Veselsky to retain primary physical custody of their children if
she completes her planned move to Minnesota. He also challenges
the trial courts classification of Patricias student loan as
marital property and the courts unequal division of property and
assignment of travel and uncovered medical expenses. Because we
conclude that the superior court did not abuse its discretion, we
affirm.
II. FACTS AND PROCEEDINGS
Bernard and Patricia Veselsky were married in 1996 and
have three children: a girl born in 1997 and twin boys born in
2000. The parties separated in July 2002, and Bernard filed for
divorce in September 2002. Bernard sought shared physical
custody of the children; Patricia sought sole physical custody of
the children and requested that she be allowed to relocate to
Minnesota with the children to pursue her education.
Bernard is a salesman with National Oilwell and earns a
gross yearly income of approximately $51,000 and a net yearly
income of approximately $38,500. At the time of trial, Patricia
earned $50 per hour as a part-time consultant for Hope Community
Resources for a net annualized income of approximately $13,000.
Prior to trial, Bernard moved to have Dr. Paul Turner
conduct comparative psychological evaluations and a family
assessment. Both parties participated in the evaluations. Trial
was held before Standing Master David S. Landry in October 2003.
Master Landry heard testimony from Bernard, Patricia, and Dr.
Turner, among others. Both parties filed written trial briefs and
closing arguments. Patricia requested primary physical custody
to take the children to Duluth, Minnesota and to live at home
with her parents while she pursues a masters degree in social
work from the University of Minnesota Duluth. Bernard contended
that the parties should share custody if Patricia remained in
Alaska and that he should be awarded primary physical custody if
Patricia moved to Minnesota.
On May 13, 2004, Master Landry issued his report. He
recommended that Patricia be granted primary physical custody of
the children and proposed a 55%/45% division of property favoring
Patricia. He also recommended that the parties share the cost of
visitation equally, and that Bernard pay seventy-five percent of
uncovered medical expenses while Patricia is actively pursuing
her degree. Bernard filed objections to the masters report on
June 1, 2004, and Patricia filed a response on June 8, 2004. On
June 10, 2004, Judge Harold M. Brown approved the masters report
with modifications, one of which was to require that Bernard pay
seventy-five percent of visitation expenses while Patricia is
residing in Minnesota and pursuing her graduate degree on not
less than an eighty percent of full-time basis. On July 7, 2004,
Judge Brown entered a decree of divorce and findings of fact and
conclusions of law adopting the modified masters report as an
order of the court. Bernard appeals.
III. DISCUSSION
A. Standard of Review
The trial court has broad discretion in child custody
decisions.1 We set aside a trial courts determination of custody
only if the entire record demonstrates that the controlling
findings of fact are clearly erroneous or that the trial court
abused its discretion. 2 We will find an abuse of discretion
where the trial court considered improper factors in making its
custody determination, failed to consider statutorily mandated
factors, or assigned a disproportionate weight to particular
factors while ignoring others.3
The trial court also exercises broad discretion in the
division of marital assets.4 The determination of what property
is marital is reviewed for an abuse of discretion although the
classification of some items may present a question of law to
which we apply our independent judgment.5 The equitable
allocation of property is reviewable under an abuse of discretion
standard and will not be reversed unless it is clearly unjust. 6
B. The Trial Court Did Not Err in Granting Primary
Physical Custody of the Children to Patricia Should She
Move to Minnesota.
Bernard challenges the superior courts decision to
allow Patricia to retain primary physical custody of the children
if she completes her planned move to Minnesota. We have held
that a court making a custody determination in cases where one
parent chooses to move away from Alaska must do so by determining
what custody arrangement is in the best interests of the
child[ren] under the criteria stated in AS 25.24.150(c),
including determining whether there are legitimate reasons for
the move.7 The trial court must assume that the move will take
place8 and then consider the following statutory factors to
determine the custody arrangement that serves the best interests
of the children:
(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 willingness and ability of each
parent to facilitate and encourage a close
and continuing relationship between the other
parent and the child . . . ;
(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.[9]
Bernard challenges the superior courts findings with respect to
factors (1), (2), (5), (6), (7), and (8). Bernard also argues
that the superior court failed to consider the impact of the
proposed move on the children and that the court erred in finding
that Patricias reasons for moving were legitimate.
1. Patricias proposed move to Minnesota
Bernard argues that the superior court erred in finding
that Patricias reasons for moving to Minnesota were legitimate
and that the court failed to consider the effect of the move on
the children.10
We have held that a proposed move is legitimate if it
was not primarily motivated by a desire to make visitation . . .
more difficult.11 The superior court found that Patricias reasons
for the move were legitimate ones related to the nature of the
graduate program at the University of Minnesota and the
availability of family support while she returned to school.
This finding is supported in the record. Patricia testified that
she is particularly interested in Native American issues and that
the University of Minnesota has one of the only social work
programs in the country whose core curriculum includes courses
focusing on this subject. By contrast, the director of the
School of Social Work at the University of Alaska Anchorage
testified that her program does not have a concentration in
American Indian groups and does not offer many courses related to
Alaska Native studies. Patricia also testified that if she moved
to Minnesota her extended family would help care for the children
when she is in class and that she would be able to live at her
parents house without paying rent, thereby freeing her from the
necessity of getting a job and permitting her to spend more time
with the children. We have previously accepted the intent to
attend graduate school out of state and the desire to be closer
to extended family as legitimate reasons for a move.12
Bernard contends that Patricias desire to move despite
his offer to provide financial assistance for day care if
Patricia were to pursue her degree at the University of Anchorage
indicates that the move is intended to frustrate his visitation
with the children. But this argument ignores the academic
advantages of the Minnesota program and the legitimate benefits
of having extended family nearby. Bernard also argues that
Patricias statements that she would not move to Minnesota if it
meant giving up custody of the children suggests illegitimate
motives for the move. But it is perfectly reasonable for a
devoted parent to condition his or her move plans on maintaining
custody of the children; we explicitly recognized this
possibility in Moeller-Prokosch I.13 The superior court did not
clearly err in finding that Patricias reasons for moving to
Minnesota are legitimate.
Bernard also argues that the superior court failed to
consider the impact of the proposed move on the children. He
appears to argue that the court should have concluded that the
proposed move was not in the best interests of the children,
pointing to Dr. Turners testimony that it would be preferable for
the children to have regular and consistent involvement with both
parents. But under our reasoning in Moeller-Prokosch I, the
proper inquiry is not whether the move itself is in the best
interests of the children, but what custody arrangement is in
their best interests assuming the move will take place.14 The
superior court properly assumed that the move would take place
and considered whether the children would be better off moving
with Patricia to Minnesota or staying in Alaska with Bernard.
The court recognized that the move will certainly have an impact
on the childrens relationship with the Father, but determined,
based in part on Dr. Turners expert testimony, that granting
primary custody to Patricia was in the childrens best interests.
Bernard points out that the superior courts statement
that he has strong family ties to the Duluth area because he has
family within one hundred miles is incorrect.15 This error is
harmless. In making its custody determination, the court did not
assume that Bernard would move to Minnesota; the court determined
that Patricia should have custody despite the negative effects of
separating the children from their father. It is highly
improbable that the superior court would have assessed the impact
of the move differently but for this factual error.
2. The capability and desire of each parent to meet
the childrens needs
The superior court found that both parents are capable
of meeting the physical, emotional, mental, religious, and social
needs of children, but that the Mother is slightly more capable
than the Father in meeting these needs. Bernard challenges this
finding.
The evidence at trial supports the superior courts
finding. Dr. Turners evaluation indicated that although both
Patricia and Bernard are good parents, Patricia has better than
average parenting abilities while Bernard has low average to
average capability to care for and parent his children.16 Dr.
Turner testified that Patricia is better able to meet the
childrens needs than Bernard. In particular, Dr. Turner noted
that Bernard did not seem to appreciate that the twins have
special needs related to their speech deficits. By contrast, Dr.
Turner found that Patricia had a good understanding of the
childrens needs and that her experience working with
developmentally challenged people was a clear strength in
addressing those needs. Dr. Turner also expressed concern that
Bernard might at times put his own needs before those of the
children.
Bernard argues that he is better able to meet the
childrens needs because he is more active in their religious
education. His principal complaint is that Patricia rarely
permits him to take the children to church on the weekends when
she has custody. But testimony indicated that Patricia has taken
their daughter to catechism class when she has custody, has
enrolled the children in a religious education program, prays
with them at home, and attends church occasionally. In any
event, under AS 25.24.150(c)(1), no single factor is dispositive;
the trial court is to consider the physical, emotional, mental,
religious, and social needs of the child[ren]. In light of the
expert testimony that Patricia is better able to meet the
childrens needs, the superior court was entitled to find that
this factor favored the mother despite testimony that the father
may play a more active role in the childrens religious
development.
Bernard also contends that Patricia has an obsessive
and controlling personality and that her behavior will negatively
impact the children emotionally and mentally. But Dr. Turner
testified that he disagreed with Bernards assessment of Patricia
as a controlling individual and did not see any evidence of
controlling behavior in her interaction with the children.
Nothing in Bernards testimony about Patricias personality
suggests that the superior courts finding is clearly erroneous.
Finally, Bernard argues that he is better able to meet
the childrens needs because Patricias insistence on caring for
the children while Bernard was working during Bernards summer
visitation period harmed the children. During Bernards period of
summer visitation, Patricia regularly picked up and dropped off
the children several times in the course of the day. Dr. Turner
did testify that these frequent transitions had a negative effect
on the children, causing what he called transition regressions.
But Dr. Turner also testified that he believed that Patricia had
only the best of intentions, that she was not trying to sabotage
the childrens relationship with Bernard, and that if a mental
health professional had provided a recommended visitation
schedule she would have followed it. Most importantly, even
considering Patricias behavior during Bernards summer visitation
period, Dr. Turner concluded that Patricia was better able to
meet the childrens needs. The superior court did not clearly err
in finding that this factor slightly favored Patricia.
3. Stability and continuity
In considering the length of time the children have
lived in a stable, satisfactory environment and the desirability
of maintaining continuity under AS 25.24.150(c)(5), the superior
court concluded that this factor favored the mother because the
children had resided with her since the separation. But the
court gave limited weight to this factor because the ultimate
environment for the children may be dramatically different in
Minnesota. Bernard argues that the court should have given
greater weight to the importance of maintaining continuity in
Bernards regular visitation with the children.
We have recognized that [s]tability is often a function
of parental attitude and not of geography.17 Courts should
consider social and emotional factors such as who the primary
care-giver was for the child18 and may properly award primary
custody to the relocating parent when that parent offers superior
emotional stability.19 Dr. Turner testified that Patricia has
served as the primary caregiver and therefore that the children
would experience a greater negative impact if they remained in
Alaska with their father rather than accompanying their mother
to Minnesota. Moreover, Dr. Turner noted that the children had
visited Duluth several times before and had extended family
there, while they had few family members in Alaska and were too
young to have established social ties in Alaska. The evidence in
the record supports the trial courts conclusion regarding this
factor.
4. The willingness and ability of each parent to
encourage a close relationship with the other
parent
In considering the willingness and ability of each
parent to encourage a close relationship with the other parent
under AS 25.24.150(c)(6), the superior court concluded that this
factor slightly favors the mother. The court noted that there is
some continuing animosity between the parties, and found that
while Patricia appears better suited to put aside her own
emotions and put the children first, Bernards anger and
unresolved marriage issues may make it more difficult for him to
do so. Bernard disputes this finding.
Bernard points to Dr Turners statements in his report
that Patricia is apprehensive about [Bernards] participation with
the children and that she was not responsive to questions about
supporting a relationship between the children and their father.
But Dr. Turner testified that overall . . . [Patricia] does
support the importance of [Bernard] being involved in the
childrens lives. Dr. Turner also testified that Bernards anger,
mistrust, and unresolved issues related to the marriage interfere
with his ability to support a relationship between Patricia and
the children, and concluded that Patricia has a little bit better
capability to support a relationship between the children and
their father. Although there is some contrary evidence in the
record, there is substantial evidence in the record to support
the superior courts finding that Patricia is more able than
Bernard to foster a relationship between the children and the
other parent.
5. Evidence of domestic violence
With respect to this factor, the superior court stated:
There have been documented instances of
domestic violence between the parents. The
biggest concern are those instances reported
by the Father to his counselor, that involved
a variety of physical assaults committed by
him against the Mother. This factor does
favor the Mother. However, the Fathers
involvement in individual counseling to
address some of his anger issues is a
positive. It therefore reduces the weight
the court will afford to this factor[.]
Bernard contends that the court should not have found
that this factor favors Patricia because Patricia herself
allegedly engaged in domestic violence. Bernard testified that
Patricia threw small objects at him such as small toys and
magazines, and twice hit him with more dangerous objects (a hard-
cover book and a cutting board). By contrast, Bernard testified
at trial that he slapped and hit [Patricia] on top of the head
and his counselor testified that he had admitted to physically
abusing Patricia on multiple occasions. The superior court was
entitled to find that this factor favored Patricia because
Bernards assaults were the biggest concern with regard to this
factor.
6. Evidence of substance abuse that directly affects
the emotional or physical well-being of the child
The superior court found that substance abuse was not a
factor affecting the children in either household. Bernard
contests this finding, arguing that Patricia abuses alcohol and
drugs. Dr. Turner testified that although both parents have used
alcohol and marijuana in the past, he believed that it is not an
issue affecting the well-being of the children. The superior
courts finding is therefore supported by evidence in the record.
We conclude that the trial court did not err in its
custody determination.
C. Property Division
1. The trial court did not err in including Patricias
student loan debt as marital property.
Bernard argues that the superior court erred when it
included Patricias student loan as a marital debt in the division
of property. We have held that there is a presumption that debts
incurred during the marriage are to be treated as marital:
Absent any showing that the parties intended a debt to be
separate, the trial court must presume that a debt incurred
during the marriage is marital and should consider it when
dividing the marital estate.20 Bernard concedes that the loan was
obtained during the marriage. Because Bernard cites no trial
evidence showing that the parties intended the debt to be
separate, the student loan was properly considered marital
property.
2. The trial court did not err in awarding Patricia a
larger share of the marital property.
The superior court ordered a property award of
$36,876.40 to Patricia and $30,171.60 to Bernard, a 55%/45%
division of marital assets. Thus, Patricia received
approximately $3,352 more than a fifty percent share of the
marital property. The court stated that this unequal
distribution reflected the income disparity that will exist
between the parties while Patricia is unemployed and pursuing her
masters degree. In making this determination, the court also
noted that Patricias future prospects, based upon her completing
all degree requirements, remain[] relatively high.
Bernard contends that the court should have divided the
property equally. At the time of the trial, Patricia worked part-
time as a social worker for $50 per hour; her annualized net
income was about $13,000. But there was also evidence in the
record that Patricia had the qualifications for a job paying
approximately $52,000 annually, roughly the same as Bernards
current gross income of approximately $51,000. Bernard argues
that Patricias earning capacity is actually greater than his, and
that he should not have to finance Patricias decision to return
to school. Patricia responds that the unequal distribution was
correct because her actual income in the year of the trial was
significantly less than Bernards and because her income potential
will be much lower than Bernards while she is in school.
Although an equal division of property is presumed to
be the most equitable, the trial court has broad discretion to
deviate from absolute equality.21 Alaska Statute 25.24.160(a)(4)
lists factors to be considered by the trial court in fashioning
a property division. These factors include, among others, the
earning capacity of the parties, the financial condition of the
parties, and the circumstances and necessities of each party.22
We conclude that it was not clearly unjust for the trial court to
award Patricia approximately $3,352 more than a fifty percent
share of the marital property based on Patricias circumstances as
an unemployed graduate student despite her full-time earning
capacity.23
D. Travel and Medical Expenses
Bernard argues that the court erred when it ordered him
to be responsible for seventy-five percent of the costs of
visitation and the childrens uncovered medical expenses while
Patricia is actively pursuing her masters degree. Alaska Civil
Rule 90.3(d)(2) provides that the court shall allocate uncovered
health care expenses equally unless the court orders otherwise
for good cause. The fact that Patricias financial resources are
limited while she is enrolled as a student constitutes good cause
for ordering Bernard to pay a greater share of these expenses.
Rule 90.3(g) provides that the court shall allocate reasonable
travel expenses which are necessary to exercise visitation
between the parties as may be just and proper for them to
contribute. Given that Patricias resources will be limited while
she is in school and the costs associated with visitation are
likely to be substantial, it was just and proper to assign a
greater share of the costs to Bernard.24
IV. CONCLUSION
The superior courts order regarding custody and the
division of property is hereby AFFIRMED.
_______________________________
1 Jenkins v. Handel, 10 P.3d 586, 589 (Alaska 2000).
2 Moeller-Prokosch v. Prokosch (Moeller-Prokosch III), 99
P.3d 531, 534 (Alaska 2004) (quoting Hamilton v. Hamilton, 42
P.3d 1107, 1111 (Alaska 2002)).
3 Hamilton, 42 P.3d at 1111.
4 Cox v. Cox, 882 P.2d 909, 913 (Alaska 1994).
5 Id.
6 Id. (quoting Doyle v. Doyle, 815 P.2d 366, 368 (Alaska
1991)).
7 Moeller-Prokosch v. Prokosch (Moeller-Prokosch I), 27
P.3d 314, 316 (Alaska 2001).
8 See id. at 316-17.
9 AS 25.24.150(c).
10 Because the superior court adopted the modified masters
report as an order of the court, we refer to these findings as
those of the superior court.
11 Moeller-Prokosch I, 27 P.3d at 316 (internal quotations
omitted).
12 See House v. House, 779 P.2d 1204, 1208 (Alaska 1989)
(move to permit new spouse to attend graduate program in
psychology legitimate reason for move); Vachon v. Pugliese, 931
P.2d 371, 379 (Alaska 1996) (desire to be near extended family is
sufficient reason to justify relocation).
13 Moeller-Prokosch I, 27 P.3d at 316.
14 Id. at 316-317; see also Moeller-Prokosch v. Prokosch
(Moeller-Prokosch II), 53 P.3d 152, 156 (Alaska 2002).
15 Bernard testified that his company has an office in
Mount Pleasant, Michigan, which is about 140 miles from his
family. In his objections to the masters report, Bernard stated
that both Mt. Pleasant, Michigan and his birthplace of Flint,
Michigan are over 500 miles from Duluth.
16 Bernard contends that Dr. Turner is biased against him.
We have held that the trial court, not this court, is in the best
position to judge witnesses credibility and evaluate their
testimony. See Evans v. Evans, 869 P.2d 478, 481 (Alaska 1994).
17 McQuade v. McQuade, 901 P.2d 421, 426 (Alaska 1995)
(quoting Craig v. McBride, 639 P.2d 303, 308 (Alaska 1982)
(Rabinowitz, C.J., concurring)).
18 Rooney v. Rooney, 914 P.2d 212, 217 (Alaska 1996).
19 Meier v. Cloud, 34 P.3d 1274, 1279 (Alaska 2001).
20 Coffland v. Coffland, 4 P.3d 317, 321-22 (Alaska 2000).
Student loans can be treated as marital property. See, e.g.,
McDougall v. Lumpkin, 11 P.3d 990, 994 (Alaska 2000).
21 Ulsher v. Ulsher, 867 P.2d 819, 822 (Alaska 1994).
22 See AS 25.24.160(a)(4).
23 Bernard relies on a line of cases in which we have
refused to modify a child support obligation because of the non-
custodial parents voluntary and unreasonable underemployment. In
Olmstead v. Ziegler, for example, we affirmed the trial courts
refusal to modify child support where the non-custodial parent
stopped practicing law and returned to school to become a
teacher. 42 P.3d 1102, 1105-06 (Alaska 2002). But even if the
voluntary underemployment doctrine applies in the property
division context, this doctrine actually undermines rather than
supports Bernards position. We noted in Olmstead that the
commentary to Civil Rule 90.3 provides that [w]hen a parent makes
a career change, [the trial courts ] consideration should include
the extent to which the children will ultimately benefit from the
change. Id. at 1106; Alaska Civil Rule 90.3 cmt. pt. III.C. We
upheld the trial courts refusal to modify child support because
Olmstead has failed to prove any benefit to the child from his
decision to downsize his practice and change careers . . . . Id.
Unlike the facts in Olmstead, Patricias graduate degree will
ultimately benefit the children because it will increase her
marketability and future prospects, and therefore would not be
classified as voluntary underemployment under this line of cases.
24 Because Bernard does not discuss in his briefs his
grounds for challenging the terms of the visitation order, we
deem this issue waived. See Adamson v. Univ. of Alaska, 819 P.2d
886, 889 n.3 (Alaska 1991) (point given only cursory statement in
the argument portion of brief is deemed waived).
