You can
search the entire site.
or go to the recent opinions, or the chronological or subject indices.
Ebertz v. Ebertz (06/03/2005) sp-5905
Ebertz v. Ebertz (06/03/2005) sp-5905
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
PETER J. EBERTZ, )
) Supreme Court No. S-11190
Appellant, )
) Superior Court No.4BE-02-108 CI
v. )
)
DENISE J. EBERTZ, ) O P I N I O N
)
Appellee. ) [No. 5905 - June 3, 2005]
s)
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District, Bethel,
Leonard R. Devaney, Judge.
Appearances: Phyllis A. Shepherd, Anchorage,
for Appellant. Michele Power, Angstman Law
Office, Bethel, for Appellee.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
BRYNER, Chief Justice.
I. INTRODUCTION
Peter Ebertz and Denise Bahma-Ebertz divorced in 2002.1
A court-appointed custody investigator recommended that Ebertz
receive custody of the couples three children. Following a
custody hearing, the superior court awarded physical and legal
custody of two of the children to Bahma-Ebertz, awarded shared
custody of the third child, and ordered Ebertz to pay part of
Bahma-Ebertzs attorneys fees. Ebertz appeals, challenging the
sufficiency of the superior courts custody findings, its decision
to grant custody to Bahma-Ebertz, and its award of partial
attorneys fees. We affirm, holding that the superior court
sufficiently addressed the statutory best-interests factors, that
the record supports its custody decision, and that the court did
not abuse its discretion in awarding partial attorneys fees.
II. FACTS AND PROCEEDINGS
Peter Ebertz and Denise Bahma-Ebertz married in
December 1989. They have three children together, Zackery,
Alicia, and Mitchell. Bahma-Ebertz took care of the children
during most of the marriage, while Ebertz worked outside the
home. Both parties served in the military in some capacity
through much of the marriage. Bahma-Ebertz left her part-time
position with the Alaska National Guard in 1998.
The couple lived in Wasilla until 1997, when the Alaska
National Guard transferred Ebertz to Bethel. Bahma-Ebertz and
the children remained in Wasilla for two years before joining
Ebertz in Bethel. In 2001 Ebertz received transfer orders back
to Wasilla, but Bahma-Ebertz decided to stay with the children in
Bethel rather than return to Wasilla. This living arrangement
strained the marriage, and Ebertz filed for divorce in March
2002.
The superior court entered an interim order granting
custody of the children to Bahma-Ebertz and appointed a custody
investigator, who interviewed the family and prepared a report
recommending that the court award custody to Ebertz. The court
then modified the interim custody order by granting interim
custody of Zackery to Ebertz.
In early 2003 the superior court held a custody hearing
and received testimony from over twenty witnesses, including the
custody investigator. The investigator testified that, in his
opinion, it was in the childrens best interests for Ebertz to
have custody. Despite the custody investigators recommendations,
the court awarded Bahma-Ebertz sole legal and physical custody of
Alicia and Mitchell. The court awarded shared physical custody
of Zackery, placing him with Bahma-Ebertz during the school year
and Ebertz during the summer months. The court also ordered
Ebertz to pay forty-five percent of Bahma-Ebertzs attorneys fees.
Ebertz appeals the award of custody and attorneys fees.
III. DISCUSSION
A. Standard of Review
Whether the superior court applied the correct legal
standard presents a question of law that we review de novo.2
Trial courts have broad discretion in determining child custody.3
We will set aside the superior courts custody determination only
if the court abused its discretion or if its findings of fact are
clearly erroneous.4 The superior court abuses its discretion if
it consider[s] improper factors in making its custody
determination, fails to consider statutorily mandated factors, or
assign[s] disproportionate weight to particular factors while
ignoring others.5 Factual findings are clearly erroneous when,
based on the entire record, they leave us with a definite and
firm conviction . . . that a mistake has been made, even though
there may be evidence to support the finding.6 We give
particular deference to the trial courts factual findings when
they are based primarily on oral testimony, because the trial
court, not this court, performs the function of judging the
credibility of witnesses and weighing conflicting evidence.7
In divorce proceedings, a trial court has broad
discretion to award attorneys fees, and we will not reverse the
courts award unless its decision is arbitrary, capricious, or
manifestly unreasonable.8
B. The Superior Courts Custody Determination
1. The legal standard for determining child custody
Ebertz first argues that the superior court treated
this case as an action to modify an existing custody order rather
than as an action to determine initial custody. In its final
findings, the court awarded physical and legal custody of
Mitchell and Alicia to [Bahma-Ebertz] based on the amount of time
they have spent with their mother, the fact that they are both
doing very well in [Bahma-Ebertzs] care. Because the interim
custody order, entered soon after Ebertz filed for divorce,
granted physical and legal custody to Bahma-Ebertz, Ebertz
maintains that the courts final custody order demonstrates that
the court required him to show changed circumstances sufficient
to justify any change in the custody situation.
Bahma-Ebertz responds that the superior court did not
require Ebertz to show a significant change in circumstances
before determining the childrens best interests. She points out
that the court specifically stated that it was basing its
decision on a best-interests analysis. She argues that the
courts discussion regarding the amount of time the children had
spent with their mother did not require Ebertz to show that
circumstances had changed since the interim order, but simply
recognized that the children had spent most of their lives with
Bahma-Ebertz. She asserts that although the superior court may
consider interim custody in its final determination,9 it did not
do so in this case.
The trial court must base an initial custody
determination on the childrens best interests, using the factors
listed in AS 25.24.150(c).10 In contrast, modifying an existing
custody order entails a two-step process: the parent seeking
modification must establish a significant change in circumstances
affecting the childs best interests; only if the parent makes
this showing does the court proceed to determine whether
modification is in the best interests of the child.11
Here, the court found that Bahma-Ebertz was the primary
caregiver of all three children throughout most of their lives,
while Ebertz spent considerable time away from the children
because of his work schedule. The court found that Ebertz lived
in Bethel, away from his children, for most of 1997-1999. After
his family joined him in Bethel, Ebertz transferred back to
Wasilla in August 2001, while Bahma-Ebertz and the children
remained in Bethel. The court noted that [i]n August 2003, it
will be another two years he has not lived with the two younger
children. Though recognizing that there has not been an
excessive amount of stability for these children, what with their
move and their father coming in and out of their lives, the court
found that these children appear to be[] doing very well. The
court then granted custody to Bahma-Ebertz based on the amount of
time they have spent with their mother.
When viewed as a whole, these findings fail to
substantiate Ebertzs claim that the court focused exclusively on
the childrens situation after the interim custody order was
entered. To the contrary, the courts discussion of Ebertzs time
away from the family establishes that the court considered the
childrens situation over the span of their lives. We agree with
Bahma-Ebertz that the superior court did not base its order on
Ebertzs failure to show that circumstances had changed since the
interim custody order issued.
2. Rejection of the custody investigators
recommendations
Ebertz next argues that the superior court abused its
discretion in rejecting the custody investigators
recommendations. Because the investigator expressly considered
all the statutory best-interests factors, Ebertz contends, the
court abused its discretion by rejecting his recommendations and
relying instead on a single statutory factor the length of time
the children have lived with Bahma-Ebertz and the desirability of
continuing the existing arrangement.12 Bahma-Ebertz responds that
the superior court considered the disputed statutory factors and
insists that it cannot be the case that the only way to properly
consider a statutory factor is to follow the custody
investigators recommendation.
We agree with Bahma-Ebertz on this point. Ebertzs
argument suggests that a custody investigators recommendations
deserve special status and should presumptively be followed. Yet
we have previously recognized that custody investigators are
simply expert witnesses and that their recommendations should be
evaluated on a case-by-case basis, in the same manner as
testimony presented by other witnesses.13 Here, the superior
court accepted testimony from over twenty witnesses. Some of
this testimony contradicted the investigators recommendations,
while other testimony agreed with those recommendations. We have
held that a court may reject a custody investigators
recommendations and rely on other evidence as long as the courts
findings are not clearly erroneous.14 The critical question,
then, is not whether the superior court erred in rejecting the
custody investigators proposed decision, but whether the evidence
as a whole supports the courts decision. Because Ebertz
separately argues that the courts custody decision is not
supported by the evidence, we will consider that issue below.
3. Adequacy of the superior courts findings and
sufficiency of evidence to support them
Ebertz argues that the courts custody findings are
deficient because they address only one of the nine statutory
factors used to determine the childrens best interests:15 the
length of time the child[ren] ha[ve] lived in a stable,
satisfactory environment and the desirability of maintaining
continuity, which is the fifth statutory best-interests factor.16
He argues that even the most cursory review of the record . . .
demonstrates that the trial court abused its discretion . . . in
its application of [the] evidence to the best interests of the
minor children. Bahma-Ebertz responds that the court was not
required to discuss every statutory factor and that its written
custody order establishes that the court did consider the factors
that were disputed.
Bahma-Ebertzs argument has merit. Our cases hold that
in determining the best interests of a child, the court need not
discuss each statutory factor in detail; the courts findings will
be sufficient if they give us a clear indication of the factors
which [the court] considered important in exercising its
discretion or allow us to glean from the record what
considerations were involved.17 Although the courts findings here
are sparse and certainly could have been set out in greater
detail, a review of those findings against the backdrop of the
record gives us a clear indication of the factors which the
superior court considered important.18
The court discussed at length the fact that Ebertz
lived away from the children for extended time periods. Despite
this instability in the childrens lives, the court noted that
several witnesses testified that Alicia and Mitchell were doing
well in Bahma-Ebertzs care. The court also discussed Zackerys
special educational and emotional needs and the fact that Bahma-
Ebertz arranged for Zackery to have counseling to help with these
special needs. Thus, it appears the court addressed the social
and emotional needs of the children and the parents desire and
ability to meet those needs the first two statutory best-
interests factors.19 The court also discussed testimony that
Ebertz once hit Zackery and that Bahma-Ebertz once left the
children in the car on a very cold day. This discussion
establishes that the court considered the issue of abuse or
neglect by the parties the seventh statutory custody factor.20
Ebertz additionally faults the superior court for
failing to consider Bahma-Ebertzs tendency to exaggerate as a
relevant point under the ninth subsection of the statutory best-
interests provisions a catchall provision that allows a court to
consider any non-specified factor it deems pertinent to custody.21
But the court did consider this factor, expressly noting that
Bahma-Ebertz had acknowledged exaggerating certain facts.
In short, the record reveals that the court considered
and discussed evidence relating to most of the statutory custody
factors that were actively disputed, not just a single factor, as
Ebertz alleges. The courts ultimate decision to give
determinative weight to one of these factors and the consequent
emphasis it placed on this factor do not, standing alone,
establish that it ignored the remaining factors or gave them
inadequate weight. Accordingly, we find no merit to Ebertzs
claim that the superior courts findings are deficient as a matter
of law because they address only a single custody factor.
A separate issue is whether the record supports the
superior courts findings. Ebertz insists that it does not,
arguing that the evidence at trial conclusively established that
the childrens best interests would not be served by awarding
custody to Bahma-Ebertz. But our review of the record indicates
that the superior courts decision is supported by substantial
evidence.
The court heard testimony from several witnesses
regarding each parents ability to meet the needs of the children.
The evidence showed that Bahma-Ebertz was the childrens primary
caretaker during the marriage and that Ebertzs job forced him to
spend considerable time away from the children. Even the custody
investigators report, which recommended awarding custody to
Ebertz, acknowledged that [g]reater time lost with the father has
been shown to correlate to high levels of problems in the area of
aggression. In its final custody order, the superior court
discussed its concern about Ebertzs extended absences from the
children. The court also found that Zackery had anger problems
in school and at home. Bahma-Ebertz had sent Zackery to
counseling to help him deal with his emotional problems, and his
teacher testified that Zackery started showing progress.
Zackerys teacher also testified that Bahma-Ebertz checked with
her on Zackerys progress approximately every two weeks. Alicias
teachers also testified that Alicia is on track academically.
Bahma-Ebertz stayed with Alicia in Anchorage during Alicias
kidney surgery and participated regularly in the childrens social
activities, like Girl Scouts and baseball. All of this evidence
bears on and substantially supports the courts findings regarding
the first two statutory factors, the physical, emotional, mental,
religious, and social needs of the child[ren]22 and the capability
and desire of each parent to meet these needs.23
The court heard conflicting evidence concerning the
next contested24 factor, the childrens stability in Bahma-Ebertzs
home and the desirability of continuing their custody there.25
Ebertz argues that the evidence clearly showed that Bahma-Ebertzs
household was unsafe and unstable for the children. Bahma-
Ebertzs brother testified that he was concerned about the living
conditions at Bahma-Ebertzs house in Bethel after making a brief
visit. He testified that there was very little food in the house
and that the front door to the home continually froze shut. On
the other hand, a private custody investigator found that Bahma-
Ebertzs home was appropriately kept for children and that the
children were clean and well fed. A friend of Bahma-Ebertzs
testified that she visited Bahma-Ebertzs home approximately
twenty times and found that Bahma-Ebertz kept it in good
condition. Moreover, the court heard undisputed evidence that
Ebertz had lived away from the children for most of their lives.
Despite the presence of conflicting testimony, then, substantial
evidence supported the courts decision to weigh the stability
factor as distinctly favoring Bahma-Ebertz. We have repeatedly
emphasized that it is the function of the trial court, not of
this court, to judge witnesses credibility and to weigh
conflicting evidence.26 We decline to second guess the superior
courts decision to resolve this conflict in Bahma-Ebertzs favor.
Ebertz further argues that the court completely ignored
the almost constant disparagement expressed by Ms. Bahma-Ebertz
against Mr. Ebertz; he also maintains that Bahma-Ebertz does not
allow him reasonable visitation. But the evidence revealed that
both parents appear to have made negative remarks about each
other. And there was testimony indicating that Bahma-Ebertz went
out of her way to keep the children from hearing and making
negative comments about Ebertz. For example, Bahma-Ebertzs
mother testified that when the children made negative remarks
about Ebertz, Bahma-Ebertz would reprimand them and tell them he
is your dad. He loves you and you do not talk . . . like that
about your dad. This evidence lends substantial support to the
superior courts implicit decision that the sixth statutory
custody factor the desire and ability of each parent to allow an
open and loving frequent relationship between the child and the
other parent27 did not tilt strongly in either parents favor.
The court similarly declined to rule that either party
was favored under the seventh statutory factor domestic
violence, child abuse, or child neglect in the proposed custodial
household.28 The court found that Ebertz had hit Zackery in the
face on one occasion but found this to be an isolated incident.
It also found that Bahma-Ebertz had once left the children in the
car on a very cold day while she visited a friend. But this too
was an isolated incident, and Bahma-Ebertz had testified that she
left the children for only a brief period time. Ebertz contends
that Bahma-Ebertz also neglected the children by allowing the
windows and doors of her house to freeze shut. But the evidence
suggests that this was caused by Bahma-Ebertzs misunderstanding
of how her homes ventilation system worked. Substantial evidence
supported the courts refusal to give this factor significant
weight as to either party.
As to the eighth specified statutory factor substance
abuse by either parent or other members of the household directly
affect[ing] the emotional or physical well-being of the child29
Ebertz argues that Bahma-Ebertzs use of prescription narcotics
and her friendship with a known alcoholic had a detrimental
effect on the children. But as Bahma-Ebertz accurately points
out, no evidence was presented that the children had access to
any of her medication or that her use of medication had any
effect on them. And despite Ebertzs assertion to the contrary,
there was no evidence that Bahma-Ebertz had a friendship with a
known alcoholic. The accusation related to a friend of Bahma-
Ebertzs named Carl Bailey. Bailey testified that he used to brew
his own beer as a hobby. But a tenant in Baileys rooming house
testified that she had never seen him consume excessive amounts
of alcohol.
Ebertz further argues that the court should also have
considered Bahma-Ebertzs tendency to exaggerate the truth. He
asserts that Bahma-Ebertz is a liar of such proportion as to
easily lead to the conclusion that she is simply divorced from
reality and can never be trusted. In Ebertzs view, Bahma-Ebertzs
alleged dishonesty deserves weight under the catchall provision
of the best-interests statute, which allows reliance on any other
factors that the court considers pertinent.30 Yet the superior
courts custody decision demonstrates that the court did consider
Bahma-Ebertzs admitted tendency to exaggerate, but evidently
chose to give it minor weight. We see no basis for overturning
the courts decision on this point, since, as we have already
mentioned, it is not our role as an appellate tribunal to second
guess the trial courts decision on issues of credibility.
In summary, the record shows that the superior court
weighed the extensive testimony of many witnesses and ultimately
found, based on all the evidence, that the childrens best
interests would be served by awarding Bahma-Ebertz sole custody
of Alicia and Mitchell and shared custody of Zackery. Our review
of the record convinces us that the superior courts custody
findings are well supported by substantial evidence. We thus
hold that the findings are not clearly erroneous and that the
custody decision does not amount to an abuse of discretion
C. Attorneys Fees
Ebertz additionally asserts that the superior court
abused its discretion in ordering him to pay forty-five percent
of Bahma-Ebertzs attorneys fees. He argues that the court
fail[ed] to take into account the fact that both of the parties
[were] fully capable of financially sustaining their own
attorneys fees. Citing Fernau v. Rowden, a child custody case in
which we affirmed an award of attorneys fees to a spouse we
described as having only poverty level job prospects,31 Ebertz
claims that fees should be awarded only when the poorer spouse
lacks the resources to hire an attorney.32 Because Bahma-Ebertz is
far from poverty level in either her current employment or her
job prospects, Ebertz reasons, an award of fees was unjustified
here.
But Fernau did not hold that fees can be awarded only
to disadvantaged spouses who have poverty level job prospects; it
merely affirmed a decision that awarded fees under those
circumstances. Nor have we adopted a rule like the one Ebertz
proposes. To the contrary, we have consistently recognized that
parties should generally bear their own fees and costs when their
economic situations and earning capacities are comparable but
that, [o]therwise, awards of attorneys fees are committed to the
trial courts discretion.33
Here, the superior court recognized that the parties
economic situations were nominally comparable: Bahma-Ebertz
earned $46,800 per year while Ebertz earned approximately $49,000
per year. Yet the court noted that, the relatively higher cost
of living in Bethel undermined this nominal equality, placing
Bahma-Ebertz at a disadvantage. The court also noted that Ebertz
would soon be eligible to retire from the military, which would
give him the ability to receive a pension and earn a second
income in the private sector. Moreover, the court noted that its
order dividing the parties property favored Ebertz, awarding him
fifty-eight percent of the marital property, including a duplex
that generated regular rental income. Ebertz had also inherited
funds that were available to pay his litigation costs.
Given the totality of these circumstances, the superior
court found a sufficient disparity in the parties economic
circumstances to warrant a partial award of fees to Bahma-Ebertz.
Because the courts findings concerning these circumstances are
substantially supported by the record, its fee award cannot be
characterized as arbitrary, capricious, or manifestly
unreasonable. Accordingly, we hold that the award fell within
the scope of the superior courts broad discretion.
IV. CONCLUSION
For these reasons, we AFFIRM the superior courts
decision.
_______________________________
1 Before their divorce, Denise Bahma-Ebertzs last name
was Ebertz. The divorce decree changed her name to Bahma-Ebertz.
For the sake of consistency, we have retained the original
caption in this case (Ebertz v. Ebertz), but throughout the
opinion, we refer to the appellee as Bahma-Ebertz.
2 Moeller-Prokosch v. Prokosch, 27 P.3d 314, 316 (Alaska
2001).
3 Smith v. Weekley, 73 P.3d 1219, 1222 (Alaska 2003).
4 Hamilton v. Hamilton, 42 P.3d 1107, 1111 (Alaska 2002).
5 Barrett v. Alguire, 35 P.3d 1, 5 n.5 (Alaska 2001)
(citing Borchgrevink v. Borchgrevink, 941 P.2d 132, 134 (Alaska
1997)).
6 Jenkins v. Handel, 10 P.3d 586, 588 (Alaska 2000).
7 In re Adoption of A.F.M., 15 P.3d 258, 262 (Alaska
2001).
8 Sloane v. Sloane, 18 P.3d 60, 63-64 (Alaska 2001).
9 Citing Smith, 73 P.3d at 1224.
10 West v. West, 21 P.3d 838, 841 (Alaska 2001).
11 Barrett, 35 P.3d at 5, 6.
12 See AS 25.24.150(c)(5) (listing as one of the best-
interests factors the length of time the child has lived in a
stable, satisfactory environment and the desirability of
maintaining continuity).
13 See State v. Phillips, 470 P.2d 266, 272 (Alaska 1970)
(stating that [t]he weight to be given to expert testimony is
within the province of the trier of fact).
14 Rooney v. Rooney, 914 P.2d 212, 219 (Alaska 1996).
15 The statutory custody factors are set out in AS
25.24.150(c). At the time the superior court issued its finding,
subsection .150(c) provided in relevant part:
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 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.
16 AS 25.24.150(c)(5).
17 Smith, 73 P.3d at 1225 (citing Borchgrevink, 941 P.2d
at 139-40).
18 Id.
19 See AS 25.24.150(c)(1) and (2).
20 See AS 25.24.150(c)(7).
21 See AS 25.24.150(c)(9).
22 AS 25.24.150(c)(1).
23 AS 25.24.150(c)(2).
24 The parties did not actively contend that the third or
fourth statutory factors the childrens preference (AS
25.24.150(c)(3)) and the affection between the parents and their
children (AS 25.24.150(c)(4)) had any relevance under the facts
of this case, so there was no occasion for the superior court to
address them.
25 See AS 25.24.150(c)(2).
26 Knutson v. Knutson, 973 P.2d 596, 599-600 (Alaska
1999).
27 AS 25.24.150(c)(6).
28 AS 25.24.150(c)(7).
29 AS 25.24.150(c)(8).
30 AS 25.24.150(c)(9).
31 42 P.3d 1047, 1060 (Alaska 2002).
32 Ebertz also cites Carlson v. Carlson, 722 P.2d 222, 225
(Alaska 1986), and Bussell v. Bussell, 623 P.2d 1221, 1223
(Alaska 1981), for this proposition. But neither case is on
point.
33 Schmitz v. Schmitz, 88 P.3d 1116, 1130 (Alaska 2004).
