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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Van Sickle v. McGraw (04/28/2006) sp-6007

Van Sickle v. McGraw (04/28/2006) sp-6007, 134 P3d 338

     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


JENNIFER VAN SICKLE, )
) Supreme Court No. S- 11725
Appellant, )
) Superior Court No. 3AN-03-6951 CI
v. )
) O P I N I O N
JOSHUA McGRAW, )
) No. 6007 - April 28, 2006
Appellee. )
)

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Mark Rindner, Judge.

          Appearances:  Gayle J. Brown, Anchorage,  for
          Appellant.   Terry  C.  Aglietti,   Aglietti,
          Offret  &  Woofter, Anchorage, for  Appellee.
          Christine McLeod Pate, Sitka, Alaska  Network
          on Domestic Violence and Sexual Assault Legal
          Advocacy  Project, for Amicus Curiae,  Alaska
          Network  on  Domestic  Violence  and   Sexual
          Assault.    Mark   Regan   and   Michael   L.
          Silverman, Alaska Legal Services Corporation,
          Anchorage, for Amicus Curiae A.K. and D.R.

          Before:    Bryner,  Chief Justice,  Matthews,
          Eastaugh, Fabe, and Carpeneti, Justices.

          EASTAUGH, Justice.

I.   INTRODUCTION
          Jennifer  Van  Sickle  challenges the  superior  courts
grant  of primary physical custody of her daughter to the  childs
father,  Joshua  McGraw.   Her appeal  raises  two  main  issues:
whether  the  2004  amendments to the child custody  statute,  AS
25.24.150,  apply  to this case and whether  the  superior  court
abused its discretion in awarding custody to Joshua.  We conclude
that  the  amendments do not apply here because the  evidence  in
this  case  had already closed by the date the amendments  became
effective.   We  also conclude that the superior  court  did  not
abuse its discretion by awarding custody to Joshua.  We therefore
affirm the superior courts decision.
II.  FACTS AND PROCEEDINGS
          Joshua  McGraw and Jennifer Van Sickle f/k/a  Weed  are
the parents of one child, born in Sitka in July 2000.  Joshua and
Jennifer  were  never married.  They separated within  months  of
their childs birth and for two years shared custody equally.   In
August  2002  the parties entered into an agreement to  alternate
custody  every  eighty-nine days.  The following  month  Jennifer
moved to Michigan, where she resides with her husband, Jason  Van
Sickle.   Joshua  lives in Sitka. For two years the  child  moved
between Michigan and Alaska per the agreement.
          In April 2003 Jennifer filed a petition in Michigan for
sole physical custody of the child.  The Michigan court dismissed
her  petition  for lack of jurisdiction under the  Uniform  Child
Custody  Jurisdiction Act.  Both the Michigan  and  Alaska  trial
courts  agreed  that  Alaska has jurisdiction  over  the  dispute
because  Alaska is the childs home state as that term is used  in
each states respective child custody jurisdiction act.
          In  response  to  Jennifers Michigan  petition,  Joshua
filed  suit in Alaska to secure primary custody.  Trial was  held
on  June  28  and  29,  2004 and written closing  arguments  were
submitted to the court on July 28 and August 3, 2004.  On July 1,
2004  Senate Committee Substitute for Committee Substitute  House
Bill  385  (H.B.  385) took effect.1  House Bill 385  amended  AS
25.24.150,  changing  how  courts must  consider  the  effect  of
domestic violence when ruling on child custody disputes.2   Among
other things, the amendment created a rebuttable presumption that
a  parent who has a history of perpetrating domestic violence may
not  be  awarded  custody of a child.3  On  August  9,  2004  the
superior  court asked the parties to submit supplemental briefing
on the applicability of the amended version of AS 25.24.150.
          Having  reviewed the additional briefing, the  superior
court  issued a separate order concluding that the amendments  do
not  apply to this case.  The court also concluded that  even  if
they  did  apply,  Joshua did not have a history of  perpetrating
domestic violence, and that if he did have such a history, he had
overcome the presumption against custody.
          In  its  written decision, the superior  court  awarded
primary   physical  custody  to  Joshua.   The  court,   although
recognizing  that both Jennifer and Joshua are good  parents  who
share loving relationships with the child, found it to be in  the
childs best interests to live with Joshua during the school year.
          Two  factors  weighed heavily in the  courts  decision.
          First, applying the former statute, the court found that Joshua
was  better at achieving an open and loving frequent relationship
between  the  child  and the other parent.  The  court  found  it
disturbing  that  Jennifer initiated the  Michigan  lawsuit;  the
court  considered  her lawsuit  an effort  to  avoid  the  shared
custody  agreement that the parties had entered  into  in  August
2002  before  [Jennifer] departed for Michigan.  The  court  also
found  that  Jennifer  seems  to  have  some  resentment  towards
[Joshua], which he does not have towards her.  In support of that
finding,  the  court  noted  a 2003 incident  in  which  Jennifer
contacted  Sitka  police  and falsely alleged  that  Joshua  used
drugs.
          Second,  the  court  considered it pertinent  that  the
child  has  extended  paternal  and  maternal  family  in  Sitka.
Jennifer  has  only  extended  family  through  her  marriage  in
Michigan.   The  court  also observed  that  the  childs  Tlingit
descent  was  more  likely  to be recognized  in  Sitka  than  in
Michigan.
          The  court  noted that both parties had acted violently
during  the relationship.  In September 2001 Joshua was  arrested
and  charged with Assault III, two counts of Assault IV, Burglary
I,  Theft  III,  and  two counts of Criminal Mischief  III.   All
charges  except  the  criminal  mischief  charges  were  dropped.
Joshua  attended a batterers intervention program as part of  his
probation.  In October 2003 Joshua left an obscene message on the
Van  Sickles  answering machine in Michigan.  The report  of  the
court-appointed  investigator  noted  police  reports   show[ing]
arguing,  hitting, throwing items, destruction of  property,  and
other  childish, immature behavior on the part of  both  parties.
The  superior court did not find these acts of domestic  violence
dispositive.  The court stated:

          No DV order has ever been sought or issued in
          this  case.  Ms. Van Sickle is not afraid  of
          Mr. McGraw and generally holds her own in the
          relationship.  The agreements she has made in
          this  case concerning the sharing of custody,
          or   the  actions  she  has  taken  that  are
          referenced in this Courts findings  regarding
          her  willingness  to  allow  an  open  loving
          relationship  between  [the  child]  and  Mr.
          McGraw  were not in any manner influenced  by
          domestic   violence   that   previously   had
          occurred between the parties.
          
The  superior  court found joint legal custody  and  unsupervised
visitation  appropriate.  Both parties  had  agreed  that  shared
custody  is workable and appropriate.  The court therefore  found
it  in the childs best interest to award primary physical custody
to Joshua.
            Jennifer appeals.  She argues that the superior court
erred  by not applying the amended version of AS 25.24.150  here,
and  she  argues  that even if the amendments do not  apply,  the
court erred in the way it applied former AS 25.24.150.
III. DISCUSSION
     A.   Standard of Review
          Whether  a  statutory amendment applies to  a  case  in
progress  raises  a legal question which we review  applying  our
independent  judgment.4  If the application question also  turned
on a fact finding, we would review it for clear error.5
          Trial  courts  are  vested  with  broad  discretion  in
determining  child  custody.6  We will  disturb  a  trial  courts
resolution of child custody issues only if we are convinced  that
the  record  shows  an  abuse  of discretion  or  if  controlling
findings  of  fact are clearly erroneous.7  A trial court  abuses
its  discretion if it considers improper factors  in  making  its
custody  determination,  fails to consider  statutorily  mandated
factors, or assigns disproportionate weight to particular factors
while  ignoring others.8  We will hold that a trial court clearly
erred only when left with a definite and firm conviction that the
trial court has made a mistake.9
     B.    The  2004 Amendments to AS 25.24.150 Do Not  Apply  in
this Case.
          The superior court determined that it would be unlawful
to  apply  the amended statute to this case because  the  amended
statute  does not expressly require that it be given  retroactive
effect  and  because  the  amended  statute  affects  substantive
rights.   We agree with the superior courts conclusion  that  the
amended  statute does not apply to this case, but  for  different
reasons.10  The amendments to AS 25.24.150 took effect on July 1,
2004.11   The  trial in this case ended on June  29,  2004.   The
evidence  was therefore closed before the effective date  of  the
amended  statute.  Neither party asked to reopen the evidence  or
present further testimony, although the superior court asked  for
supplemental briefing on the applicability of the amendments.
          We  conclude  that the amended version of AS  25.24.150
does  not  apply to this case because the evidence closed  before
the  effective date of the statute.  The superior court therefore
did not err by analyzing this case under former AS 25.24.150.
     C.   The  Superior  Court Did Not Abuse  Its  Discretion  in
          Awarding Primary Physical Custody to Joshua.
          
          The  superior court determined that, applying the best-
interest  factors  in  former AS 25.24.150(c),  primary  physical
custody should be awarded to Joshua.12  Jennifer argues that  the
superior court erred in applying two of the statutory factors  AS
25.24.150(c)(5) and (c)(6).  Jennifer argues that the court erred
in finding that Joshua was better at achieving an open and loving
relationship  between the child and the other  parent.   And  she
argues that the superior court erred in finding that Sitka  is  a
better  home  for  the child than Michigan in terms  of  extended
family and cultural opportunities.
          The  superior  court determined that Joshua  is  better
than   Jennifer   at  achieving  an  open  and  loving   frequent
relationship  between the child and the other  parent.   Jennifer
argues  that  this  finding was based  solely on  the  fact  that
Jennifer filed a Michigan petition for custody.  She argues  that
the  court  impermissibly faulted her for starting the litigation
          process in Michigan when Joshua also started litigation in
Alaska.
          Jennifers  argument is flawed for two reasons.   First,
the  superior  court relied on more than the Michigan  filing  in
making its determination regarding Jennifers ability to foster an
open  relationship  between the child and Joshua.   The  superior
court  noted  Jennifers resentment towards [Joshua],  citing  the
fact  that  she falsely accused him of using drugs in retaliation
for not allowing her to spend the childs birthday with the child.
Second, Joshuas filing was in response to Jennifers.  The  record
does  not establish that he would have filed his Alaska complaint
even  if  she had not filed suit in Michigan.  Jennifer  has  not
demonstrated  that  the superior court abused its  discretion  in
determining  that  Joshua  was  better  at  fostering   an   open
relationship  between  the  child  and  the  other  parent   than
Jennifer.
          The  superior court also found that Sitka is  a  better
home for the child than Michigan in terms of extended family  and
cultural  support.   Jennifer  argues  that  the  courts  finding
violates our holding in Moeller-Prokosch v. Prokosch.13  In  that
case   Moeller-Prokosch  appealed  a  decision  awarding  primary
physical  custody  of her son to the father after  assuming  that
Moeller-Prokosch  would relocate out of  Alaska.14   We  reversed
because in considering the fifth best interest factor, the  trial
court  focused too narrowly on geographic stability and  had  not
considered each parents respective ability to maintain stable and
satisfactory  relations between themselves and the  child.15   We
also   criticized  the  trial  courts  ruling  because  it   only
considered the effect of the childs separation from his father if
his mother moved with the child without considering the effect of
the childs separation from his mother if the mother moved without
him.16  We concluded that the trial court must conduct a symmetric
consideration  of the consequences to [the child]  both  if  [the
mother] leaves with him and if she leaves without him.17
          Jennifers  reliance on Moeller-Prokosch  is  misplaced.
In  Moeller-Prokosch, both parents lived in Alaska and one wanted
to move away.18  In this case, Jennifer already lives in Michigan.
The  child has been living with her there, off and on,  for  over
two  years.   And  the  superior court  considered  each  parents
ability  to maintain acceptable relations between themselves  and
their daughter.19  The superior court noted that the child is in a
stable,  satisfactory environment in either  parents  home.   The
court  did not, as Jennifer argues, give too little consideration
to the community . . . of the minor child in Michigan.  The court
heard  testimony  about home environment and extended  family  in
both  Sitka and Michigan.  The court noted that Jason Van  Sickle
has  extended family in Michigan, but concluded that it  is  more
significant that a biological parent has extended family  in  the
area where the child may reside than the fact that a spouse of  a
parent has such extended family.  Although that conclusion  might
not  hold  true  in  all  situations, it  was  not  an  abuse  of
discretion to reach it here, given the courts findings  regarding
the  childs  Tlingit  heritage  and  her  extended  paternal  and
maternal family in Sitka.
          Jennifer also argues that the superior court failed  to
give symmetric consideration of the consequences to the child  of
the  custody determination.  The superior courts findings of fact
do  not  include findings about the impact on the child of  being
separated  from  either parent.  But at the time  of  trial,  the
child  had  already  been separated from each  parent  for  three
months  at a time for over two years.  The court noted that  this
arrangement  had worked remarkably well under the  circumstances.
Because  the  parties former agreed-upon arrangement resulted  in
prolonged  separation  from each parent, and  because  the  court
found  that this arrangement had worked well, there was no reason
to  consider  whether separating the child from each  parent  for
long  periods of time would be harmful.  The court did not  abuse
its  discretion  by  failing to make specific  findings  on  this
topic.
          Finally, Jennifer argues that the superior court  erred
when it concluded that custody with Joshua would give the child a
better chance to maintain her Tlingit heritage. Jennifer suggests
that  the  childs  Tlingit heritage is through  Jennifers  family
alone.  But Joshua testified at trial that his family is also  of
Tlingit  ancestry.  The court concluded in its findings  of  fact
that  Tlingit  culture is more likely to be recognized  in  Sitka
than Michigan.  That conclusion is reasonable; Tlingit culture is
rooted in the region surrounding Sitka.
          We note that Jennifer has not argued on appeal that the
superior court erred by not considering, in the context of former
AS 25.24.150, an episode of domestic violence testified to by her
husband,  Jason.  Jason testified at trial about  an  April  2002
incident  in  which  Joshua  drove menacingly  toward  Jason  and
Jennifer while screaming obscenities.  Although Jennifer mentions
this  vehicular incident in her briefing on appeal in support  of
her  argument that Joshua has a history of perpetrating  domestic
violence,  as  that phrase is used in the amended version  of  AS
25.24.150,  she  does  not argue in her opening  brief  that  the
superior court erred in not considering this incident in applying
former AS 25.24.150.  She addresses the issue in her reply brief,
but  new  issues raised in a reply brief are considered waived.20
Jennifer  also  failed to mention the vehicular incident  in  her
trial brief, in her written closing argument at trial, and in her
motion  for  reconsideration.   She  therefore  also  failed   to
preserve the argument below.21
IV.  CONCLUSION
          For  these reasons, we AFFIRM the superior courts grant
of primary physical custody to Joshua.
_______________________________
     1    Ch. 111,  6, SLA 2004.

     2     Compare  AS 25.24.150(c)(6), (g), (h) with  former  AS
25.24.150(c).

     3    AS 25.24.150(g), added in 2004, provides:

          There  is  a  rebuttable presumption  that  a
          parent  who  has  a history  of  perpetrating
          domestic violence against the other parent, a
          child,  or a domestic living partner may  not
          be  awarded sole legal custody, sole physical
          custody,   joint  legal  custody,  or   joint
          physical custody of a child.
          
A  parent has a history of perpetrating domestic violence if  the
court  finds  that during one incident of domestic violence,  the
parent causes serious physical injury or the court finds that the
parent  has  engaged  in  more  than  one  incident  of  domestic
violence.  AS 25.24.150(h).

          The  presumption  [against  custody]  may  be
          overcome  by a preponderance of the  evidence
          that the perpetrating parent has successfully
          completed   an   intervention   program   for
          batterers,  where reasonably available,  that
          the  parent  does  not  engage  in  substance
          abuse,  and  that the best interests  of  the
          child require that parents participation as a
          custodial parent because the other parent  is
          absent,  suffers  from  a  diagnosed   mental
          illness that affects parenting abilities,  or
          engages   in  substance  abuse  that  affects
          parenting  abilities,  or  because  of  other
          circumstances that affect the best  interests
          of the child.
          
AS 25.24.150(h).

     4     See  Rockstad v. Erikson, 113 P.3d 1215, 1219  (Alaska
2005) (holding that questions of law are reviewed de novo);  Rush
v.  State,  Dept of Natural Res., 98 P.3d 551, 553 (Alaska  2004)
(holding  that  question of potential retroactive application  of
statute is reviewed de novo).

     5    See Rockstad, 113 P.3d at 1219.

     6    Dingeman v. Dingeman, 865 P.2d 94, 96 (Alaska 1993).

     7    Silvan v. Alcina, 105 P.3d 117, 120 (Alaska 2005).

     8     Id.  (quoting Borchgrevink v. Borchgrevink,  941  P.2d
132, 134 (Alaska 1997)).

     9    Dingeman, 865 P.2d at 96.

     10    We may affirm a judgment on any grounds that the record
supports,  even  grounds  not relied on by  the  superior  court.
Snyder  v.  Am.  Legion Spenard Post No. 28, 119 P.3d  996,  1001
(Alaska  2005).  We express no opinion about whether the  amended
statute  should  be given retroactive effect or whether  applying
the amended statute raises procedural due process issues.

     11    Ch. 111,  6,  SLA 2004.

     12    Before the 2004 amendments became effective, former AS
25.24.150(c) required the court to consider the following factors
in  determining  custody  in  accordance  with  the  childs  best
interests:

          (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.
          
     13     Moeller-Prokosch  v. Prokosch, 99  P.3d  531  (Alaska
2004).

     14    Id. at 533.

     15    Id. at 534-35.

     16    Id. at 535.

     17    Id. at 535-36.

     18    Id. at 533.

     19    See id. at 534-35.

     20     See  Crittell v. Bingo, 83 P.3d 532, 536 n.19 (Alaska
2004)  (stating  that reply brief  may raise no  contentions  not
previously raised in either the appellants or appellees briefs  )
(quoting Alaska R. App. P. 212(c)(3)).

     21     See  Brandon v. Corr. Corp. of Am., 28 P.3d 269,  280
(Alaska 2001).

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