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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Puddicombe v. Dreka (09/14/2007) sp-6164

Puddicombe v. Dreka (09/14/2007) sp-6164, 167 P3d 73

     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

CHERISH PUDDICOMBE, )
n/k/a CHERISH POOLE, ) Supreme Court No. S- 12589
)
Appellant,)
) Superior Court No.
v. ) 3PA-05-2001 CI
)
TODD DREKA, ) O P I N I O N
)
Appellee. ) No. 6164 September 14, 2007
)
          Appeal  from the Superior Court of the  State
          of  Alaska, Third Judicial District,  Palmer,
          Eric Smith, Judge.

          Appearances:    Carl  D.  Cook,   Houston   &
          Houston, P.C., Anchorage, for Appellant.   No
          appearance by Appellee.

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

          MATTHEWS, Justice.

I.   INTRODUCTION
          This  case  involves a custody dispute between  Cherish
Poole1  and  Todd  Dreka over their daughter Sydney  Lynn  Dreka.
Poole  appeals the superior courts award of custody to  Dreka  in
the  event Poole relocates to Arizona.  Since the superior  court
found that both parties engaged in domestic violence but did  not
address  the  statutory requirements regarding domestic  violence
found  in  AS 25.24.150(c)(6) and AS 25.24.150(g)-(i), we  remand
for more specific findings.
II.  FACTS AND PROCEEDINGS
          Sydney  Lynn  Dreka was born on March  31,  2003.   Her
parents, Todd Dreka and Cherish Poole, were never married.  Poole
          has two other daughters from an earlier marriage who were eleven
and fifteen at the time of the custody trial.
          In  December  2005 Poole moved for an ex parte  custody
award,  interim custody, and a restraining order.   The  superior
court denied her request to file the motions ex parte and ordered
an  interim  custody  hearing.  At the May 2006  interim  custody
hearing  the superior court granted shared 50/50 physical custody
on  an  interim  basis  until the custody trial  and  ordered  no
contact  between  the parties except during exchanges.   In  July
2006  Poole  married a resident of Arizona.  At trial  in  August
2006  she  testified  that she was planning to  move  to  Arizona
permanently  with  her  three daughters.  After  the  trial,  the
superior court awarded shared custody if both the parties resided
in  Alaska.   In the event that Poole relocated to Arizona,2  the
superior court awarded month on/month off visitation until Sydney
started  school  in  September 2008. At that  point  Dreka  would
assume  primary physical and sole legal custody, and Poole  would
have visitation during some school breaks and the summer.
          Poole  appeals  this  custody  award.   Dreka  did  not
participate in this appeal.
III. DISCUSSION
          The  superior court must award child custody  based  on
the  best interests of the child,3 taking into consideration nine
factors  listed  in  AS 25.24.150(c).  This court  reviews  child
custody  decisions for abuse of discretion, which occurs when  we
are left with a definite and firm conviction, after reviewing the
whole  record,  that the trial court erred in  its  ruling.4   In
child  custody cases, we will find the superior court abused  its
discretion  if  it  considered improper  factors  in  making  its
custody  determination, failed to consider  statutorily  mandated
factors,   or  assigned  disproportionate  weight  to  particular
factors  while ignoring others.5  Factual findings are overturned
if  they  are  clearly erroneous, meaning that a  review  of  the
entire record firmly convinces us that a mistake has been made.6
     A.   It   Was  Error  To  Fail  To  Explicitly  Address  the
          Statutory Provisions Dealing with Domestic Violence.
          
          Poole  made  serious allegations of domestic  violence.
She  claimed  that  Dreka  punched  her  on  numerous  occasions,
sexually assaulted her, choked her, and threatened to hire a  hit
man  to  kill her.  She also claimed that he shoved her  daughter
Britney.   She  did  not present any witnesses who  testified  to
seeing any physical violence on the part of Dreka.  One of Pooles
coworkers testified that Poole had a black eye once while she was
dating Dreka.  Dreka maintains that he never physically assaulted
Poole  or  Britney and never threatened Poole.  He  also  claimed
that  Poole  punched  him on at least one occasion  and  bit  him
twice.
          There    was   extensive   testimony   about    several
altercations  that  occurred between the parties.   For  example,
there  was  an incident in Alaska in July 2005 that was discussed
in  detail at trial.  Dreka and his father claim that Poole  lost
her  temper  and started pushing and shoving Dreka and  screaming
profanities  at  him and eventually bit him in the  back.   Poole
          claims that Dreka was chasing her.  There was another fight in
Florida  that  Drekas grandmother heard but  did  not  see.   She
testified that Dreka was bleeding after the fight and she had  to
tend  to  bite  wounds and scratches.  Poole  stated  that  Dreka
assaulted  her  and  she  bit him in self-defense.   Thus,  while
witnesses did see clashes between Poole and Dreka, a bite mark on
Dreka  and  a black eye on Poole, most of the evidence  regarding
physical violence was from the parties themselves and was  highly
contested.
          Alaska  Statute 25.24.150(c)(7) requires  the  superior
court to consider any evidence of domestic violence, child abuse,
or child neglect in the proposed custodial household or a history
of  violence  between the parents.  The superior court  made  the
following finding with respect to this factor:
               Domestic violence, although both parents
          are  going to disagree strongly with me, from
          what  I  can  tell,  this was  mutual.   Both
          parents  have  a  substantial anger  problem.
          Both of them substantially have minimized  it
          and  both of them need to think long and hard
          about  whats going on but I was fairly  taken
          aback  by the attitude both parents exhibited
          on the stand in this respect.[7]
          
The  superior court did not elaborate on this finding or make any
additional factual findings regarding domestic violence.
          The  superior  courts  language  clearly  indicates   a
finding  that  both  parties engaged  in  domestic  violence.   A
finding   of  domestic  violence  triggers  two  other  statutory
requirements with respect to child custody.
          1.   Alaska Statute 25.24.150(c)(6)
          The  legislature addressed the issue of how  the  court
should consider domestic violence when dealing with child custody
when  it  amended AS 25.24.150 in 2004.8  The first change  dealt
with AS 25.24.150(c)(6), which requires the court to consider the
willingness  and  ability  of  each  parent  to  facilitate   and
encourage  a close and continuing relationship between the  other
parent  and  the  child.   The legislature  added  language  that
prohibits  a  court  from  considering  this  factor  in  certain
situations:
          except  that the court may not consider  this
          willingness  and ability if one parent  shows
          that  the  other parent has . . . engaged  in
          domestic  violence against the  parent  or  a
          child,  and  that  a continuing  relationship
          with  the  other  parent  will  endanger  the
          health or safety of either the parent or  the
          child[.][9]
          
          The   superior  court  seemed  to  base   its   custody
determination  almost  entirely on  subsection  .150(c)(6).   The
court  found both parties to be equally fit parents:  [b]alancing
all  [the] factors together, I cant say at this point that either
partys  a  more  fit  parent  than the  other.   The  court  then
          emphasized Pooles lack of cooperation and communication with
Chris Puddicombe, the father of her two oldest daughters:
          [There  is] very little question  that  if  I
          were  to authorize the plaintiff to take this
          child  to  AZ with primary custody  that  the
          defendant  is highly unlikely [to]  see  her,
          unless  he  moved to AZ.  And  even  then  it
          would  be a fight.  The Court is also .  .  .
          quite   concerned  that  if  plaintiff   were
          awarded sole legal custody defendant would be
          in the dark just like Mr. Puddicombe.[10]
          
Poole  argues  that the superior court abused its  discretion  by
relying  on  this  factor in light of testimony regarding  Drekas
domestic violence.
          In  general  the trial court does not need  to  discuss
each factor in AS 25.24.150(c).11  Once the trial court makes  an
evidence-based finding that domestic violence occurred,  however,
it  should  explicitly address whether or not  the  parent  is  a
continuing threat to the health and safety of the other parent of
the  children  prior  to  relying on the parents  willingness  to
foster a relationship under AS 25.24.150(c)(6).  Since the  court
did not address the domestic violence exception to the subsection
(c)(6)  factor  a  remand is necessary.  On remand  the  superior
court  should  make  findings as to whether  Dreka  represents  a
continuing  danger to the health and safety of Poole  or  Sydney.
If  the court finds that Dreka does represent such a danger, then
it  should  revisit  the  custody issue  without  relying  on  AS
25.24.150(c)(6).
          2.   Alaska Statute 25.24.150(g)-(i)
          The  legislatures recent amendments also added  several
new   sections  to  the  child  custody  statute,  including   AS
25.24.150(g)-(i).12   Alaska  Statute  25.24.150(g)   creates   a
rebuttable   presumption  that  a  parent  with  a   history   of
perpetrating domestic violence will not be awarded sole or  joint
custody of the child.  Alaska Statute 25.24.150(h) states that  a
parent  should  be considered to have a history  of  perpetrating
domestic  violence under (g) of this section if the  court  finds
that, during one incident of domestic violence, the parent caused
serious  physical injury or the court finds that the  parent  has
engaged in more than one incident of domestic violence.  Finally,
AS 25.24.150(i) tells the trial court how to deal with situations
in which both parents are found to have a history of perpetrating
domestic violence.13
          The  question presented here is very similar to the one
discussed with respect to subsection .150(c)(6) above:   can  the
superior  court  make  a  finding of domestic  violence  but  not
explicitly address whether it was serious enough to be a  history
of perpetrating domestic violence under the definition set out in
subsection .150(h)?  Poole did not make this argument on  appeal,
however,  so it is waived unless the superior courts  failure  to
discuss the provisions was plain error.
          We  hold  that  when  the record  shows  that  domestic
violence  has occurred and the court so finds, it is plain  error
          for the court not to make findings as to whether the domestic
violence amounted to a history of perpetrating domestic violence.
If  such  a  history is found then the path charted in subsection
.150(g)-(i)  must  be followed.  Thus, we remand  this  case  for
findings   regarding  whether  either  partys  domestic  violence
satisfied  the  definition of a history of perpetrating  domestic
violence set forth in AS 25.24.150(h).
     B.   The  Superior  Court Did Not Abuse  Its  Discretion  by
          Awarding  Custody to Dreka Even Though Sydneys  Sisters
          Live with Poole.
          
          Poole  contends  that  the  superior  court  failed  to
consider  the  relationship between Sydney and her  sisters  when
awarding Dreka primary physical custody as of September 2008.
          This  court has often embraced the proposition that  it
is  desirable to not separate siblings in the course  of  custody
disputes.14  However, rather than establishing rigid legal maxims,
we  have  instead opted for a more flexible approach.15  This  is
because,  even  though  maintaining  sibling  relationships  will
typically  be  in  the best interests of the  child,  cases  will
undoubtedly  arise where the best interests of the child  dictate
otherwise.16   Thus,  this  court  has  given  trial  judges  the
necessary  discretion to best respond to the  myriad  of  factual
settings which will invariably arise in custody matters,  at  all
times  cognizant that it is the best interests of the child which
is the paramount consideration.17
          The  superior  court discussed the sibling relationship
when it addressed AS 25.24.150(c)(5), which requires the court to
consider  the  length of time the child has lived  in  a  stable,
satisfactory  environment  and the  desirability  of  maintaining
continuity.  The court stated the following with respect to  this
factor:
               The next factor is continuity, the Court
          doesnt really see that as a factor here.  The
          parents have been sharing custody lately, the
          kid[]   bounced  around,  spending   extended
          periods of time with one or the other  parent
          all  her  life, in some ways,  it  cuts  both
          ways, shes got a lot of family and support up
          here  in AK, shes got two sisters down in  AZ
          right  now, but if the Court starts factoring
          that  in  th[e]n it becomes a self fulfilling
          prophecy,  so the Court doesnt see continuity
          as a significant issue.
          
Thus, the court did consider the existence of the siblings in its
best interests analysis.  While it did not specifically refer  to
a  preference for keeping siblings together, it did note that the
sisters had already spent time apart18 and emphasized the presence
of  family  in Alaska.  There is support in the record for  these
findings.   The parents shared custody prior to trial, and  there
was testimony indicating that Sydney spent an extended period  of
time  in  Florida with Dreka as well.  Both sets of  grandparents
reside  in Alaska, although Drekas parents spend time in  Florida
every winter.
          Pooles  argument  that the superior  court  refusal  to
include the sibling relationship in the best interest analysis is
therefore  incorrect.   The  superior  court  noted  the  sibling
relationship   but  determined  that  given  the   other   family
relationships in Alaska and the extended periods of  time  Sydney
had  been  separated from her siblings, the sibling  relationship
was  not  dispositive.   The superior court  did  not  abuse  its
discretion in this respect.19
IV.  CONCLUSION
          The  superior  court did not abuse  its  discretion  by
failing  to  give decisive weight to the desirability of  keeping
Sydney  with her siblings.  However, given the evidence  and  the
courts findings of domestic violence, it was error not to address
the  domestic  violence exception contained in AS 25.24.150(c)(6)
and  the domestic violence provisions set out in AS 25.24.150(g)-
(i).   The custody award is therefore vacated, and this  case  is
remanded   for  findings  in  compliance  with  these   statutory
subsections.   The court may order a supplemental hearing  if  in
the  judgment of the court a supplemental hearing will be  useful
or necessary.
          VACATED and REMANDED.
_______________________________
     1    Cherish Poole was formerly known as Cherish Puddicombe.
She changed her name when she remarried in July 2006.

     2    After the trial Poole relocated to Arizona.

     3     AS  25.24.150(a).   AS 25.24.150 establishes  how  the
court  should  determine custody when the parents are  divorcing.
Unmarried  parents may petition for custody under  AS  25.20.060,
which requires the court to consider the factors enumerated in AS
25.24.150(c)  as  well  as  the  presumption  established  in  AS
25.24.150(g).

     4     Silvan  v.  Alcina, 105 P.3d 117,  120  (Alaska  2005)
(quotation omitted).

     5    Id. (quotation omitted).

     6    Schmitz v. Schmitz, 88 P.3d 1116, 1121 (Alaska 2004).

     7     The  superior court issued oral findings of  fact  and
conclusions  of  law,  which were transcribed  by  Poole  at  the
request of the court.

     8    Ch. 111,  4-5, SLA 2004.

     9    Id.  4.

     10     There  is  support in the record  for  this  finding.
Dreka,  Chris  Puddicombe, and Puddicombes  girlfriend,  Nannette
Hearn, testified extensively as to problems gaining access to and
information about their children when Poole had custody of them.

     11     In  Park v. Park this court held that the trial court
does not need to explicitly refer to each of the nine factors  in
AS 25.24.150(c):

               While  a court determining custody  must
          always   consider  each  of  these  statutory
          factors, it need not refer to all of them  in
          explaining its custody decision.   The  court
          needs  only to discuss those factors that  it
          considers actually relevant in light  of  the
          evidence  presented in the  case  before  it;
          express  mention  of  each  factor   is   not
          required, but the courts findings must  at  a
          minimum  give  us a clear indication  of  the
          factors  which [it] considered  important  in
          exercising  its  discretion or  allow  us  to
          glean  from  the  record what  considerations
          were involved.
          
986   P.2d  205,  207  (Alaska  1999)  (alteration  in  original)
(quotations omitted).

     12    Ch. 111,  5, SLA 2004.

     13    AS 25.24.150(i) states the following:

               If  the  court  finds that both  parents
          have   a  history  of  perpetrating  domestic
          violence under (g) of this section, the court
          shall either
          
               (1)   award  sole  legal  and   physical
          custody  to the parent who is less likely  to
          continue  to  perpetrate  the  violence   and
          require that the custodial parent complete  a
          treatment program; or
          
               (2)  if necessary to protect the welfare
          of  the  child, award sole legal or  physical
          custody, or both, to a suitable third  person
          if  the  person would not allow access  to  a
          violent  parent  except  as  ordered  by  the
          court.
          
     14    Craig v. McBride, 639 P.2d 303, 306 (Alaska 1982).

     15    Id.

     16    Id.

     17    Id.

     18    In Craig v. McBride this court noted that the fact that
siblings were separated for substantial lengths of time could  be
relevant to the determination of the best interests of the child.
639 P.2d at 306 n.11.

     19     Poole  also argues that the superior court failed  to
give   proper  weight  to  the  Appellees  admitted  intoxication
immediately prior [to] picking up the minor child.  The  superior
court  discussed  the incident in question and  found  it  to  be
problematic. However, the court found it to be a one time  thing,
and  didnt  put  a  lot of weight on it. Since there  was  little
evidence  beyond  this incident that shows that  Dreka  regularly
drove drunk or had a drinking problem, the superior court did not
abuse its discretion in making this finding.

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