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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Chesser v. Chesser-Witmer (03/21/2008) sp-6241
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
| MICHAEL A. CHESSER, | ) |
| ) Supreme Court No. S- 12158 | |
| Appellant, | ) |
| ) Superior Court No. 4FA-01-00112 CI | |
| v. | ) |
| ) O P I N I O N | |
| LAURIE K. CHESSER-WITMER, | ) |
| ) No. 6241 March 21, 2008 | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Robert B. Downes, Judge.
Appearances: Michael A. Chesser, pro se,
Evans Mills, New York, Appellant. Margaret
OToole Rogers, Foster & Rogers, LLC,
Fairbanks, for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, and Carpeneti, Justices.
FABE, Chief Justice.
I. INTRODUCTION
The superior court modified a child custody order,
granting physical custody to the mother during the school year in
Fairbanks and to the father during summers and some holidays in
Fort Drum, New York. This reversed the arrangement that the
court had established one year before, under which the child
spent the school year with her father in New York state. The
father appeals the modification, arguing that the mother failed
to prove a substantial change in circumstances, that the courts
findings of fact were clearly erroneous, and that the court
abused its discretion by failing to consider all statutory
factors in determining the childs best interests. Because we
conclude that the superior court did not err in its findings of
fact and that it considered the relevant statutory factors, we
affirm its ruling.
II. FACTS AND PROCEEDINGS
We review for a second time the custody agreements of
Laurie Chesser-Witmer and Michael Chesser, who married in 1997;
had their only child, Bryanna, in Fairbanks in 1998; and divorced
in 2001.1 At the time of the parties original custody agreement,
both parents lived in Fairbanks and shared legal and physical
custody. Laurie had physical custody of Bryanna approximately
sixty percent of the time; Michael had physical custody
approximately forty percent of the time. On January 23, 2004,
Michael filed a motion to modify custody because he anticipated
that his employment with the United States Army [would] take
[him] back to the Continental US. He recommended that Bryanna
spend the school year with him wherever he would be stationed and
that she spend summers with Laurie in Fairbanks. Laurie objected
to Michaels proposed modification of the child custody
arrangement.
Following a bench trial in May 2004, Superior Court
Judge Richard D. Savell granted Michaels motion for one year and
issued an order modifying custody. Judge Savell indicated that it
was a very difficult call but found that Bryannas interests were
not served by Lauries assisted living business, which she
operated out of her home, and that Laurie had interfered with an
open, frequent, and loving relationship with Michael.2 Judge
Savell ordered that Bryanna live with Michael and attend school
in Fort Drum, New York, where Michael had been stationed. But
Judge Savell made it clear that this modified custody arrangement
was only to be in place for one year. Both parties were ordered
to submit progress reports to the court a year later, on May 1,
2005, regarding respective personal progress and their successes
or failures [in] co-parenting [Bryanna]. Laurie appealed Judge
Savells order to this court; we affirmed the superior courts
decision.3
During the one-year trial custody period, the parties
litigated several aspects of their custody arrangement. Laurie
sought court intervention to obtain both Christmas and spring
break visitations, and Michael filed a notice of intent to
request sanctions against Laurie for interfering in the emotional
bonds between Bryanna and her stepmother, Angela Chesser. Laurie
and Michael both filed motions to show cause, alleging mutual
failures to share, among other things, school and health records.
In September 2004 Laurie sent a bouquet of birthday
flowers and a teddy bear to Bryannas school.4 This provoked a
very upset phone call from Michael, who indicated that it was
inappropriate for [Laurie] to send . . . [the birthday gifts] to
[Bryannas] school, that she had made [waves at] school and the
principal was very, very upset with [Laurie] doing that. Laurie
called the principal to apologize for any inconvenience, which
provoked Michael to chastise Laurie for jumping rank by
responding directly to the principal.
On April 28, 2005, Michael filed a motion for permanent
custody. Laurie opposed this motion, contending that [t]he
courts experiment has not worked out to the benefit of Bryanna as
the court had hoped. She in turn filed a cross-motion seeking
school-year custody. Both parties pleadings contained numerous
accusations of noncompliance with the courts orders, complaints
of bad parenting, and claims of custodial interference. In
August 2005 Superior Court Judge Robert B. Downes presided over a
four-day trial on Bryannas custody arrangement.5
At trial, Judge Downes heard testimony from Michael,
Angela Chesser (Michaels wife and Bryannas godmother), Eric
Wharton (the court-appointed child custody investigator), Vanessa
Jusczak (Michaels ex-girlfriend, who sought a restraining order
against Michael in 2002 as a result of alleged domestic violence
and extortion), Vanessa Korsgren (Laurie and Bills next-door
neighbor), Bill Witmer (Lauries husband and Bryannas stepfather),
and Laurie Chesser-Witmer. The superior court entered an order
modifying custody, granting Laurie school-year custody and
Michael summer and holiday visitation. Michael appeals the
modified custody order.
III. DISCUSSION
A. Standard of Review
The trial court is vested with broad discretion in
child custody decisions,6 and its custody determination will not
be set aside unless the record shows that its controlling
findings of fact are clearly erroneous or the court abused its
discretion.7 A finding of fact is clearly erroneous when a
review of the record leaves the court with a definite and firm
conviction that the superior court has made a mistake.8 We find
an abuse of discretion in custody determinations when the trial
court fails to consider statutorily mandated factors, assigns too
much weight to some of the factors, or considers improper
factors.9
The parties dispute whether Judge Savells May 2004
order was an interim custody order or a final custody
determination.10 Judge Downes found that the status of the case
was a continuation of the custody motion [filed in 2004] . . . .
There was a substantial change in circumstances when Mr. Chesser
moved to New York[, and t]he question is . . . what is the best
interest of the child under AS 25.24.150. Michael maintains that
Judge Savells order should be interpreted as a final order, which
would only be modifiable if Laurie could prove a new change of
circumstances.11
Because of the one-year limitation on the duration of
the May 2004 order, it was logical for the superior court to
characterize the August 2005 custody hearing as a continuation of
the May 2004 hearing on the motion to modify custody. When we
addressed the May 2004 order in Chesser-Witmer v. Chesser, we
noted that the change in custody was ordered to be for one year
duration and no more. 12 In deferring to the superior courts
discretion to fashion custody awards designed to meet the unique
needs of the individuals involved,13 we reasoned that [g]iven that
. . . another modification hearing may be held at the superior
court level, and given that there were no mistakes of law or fact
during the modification hearing reviewed today, we decline to
undo the current arrangement and interrupt a perhaps more gradual
process.14 Although Laurie may have been able to meet her burden
to establish a change in circumstances based on a showing that
Michaels actions substantially interfere[d] with [her] visitation
rights,15 that showing was not necessary because the May 2004
order was an interim order. Judge Downes appropriately treated
the August 2005 trial as a continuation of the May 2004 custody
hearing.
B. The Trial Courts Findings of Fact Regarding the Best
Interests of the Child Were Not Clearly Erroneous.
Following a finding of a substantial change in
circumstances, the superior court must consider nine statutory
factors to determine the best interests of the child.16 Judge
Downes made specific findings on five of the nine statutory
factors. He found that Bryanna was not of a sufficient age to
form a preference as to where she lived and that Bryanna loves
both [parents] and is loved by them in return. He made express
stability findings and concluded that Laurie was much more
willing to encourage a close continuing relationship between
Bryanna and her father. He determined that the allegations of
domestic violence presented by Vanessa Jusczak did not rise[] to
the level of requiring him to somehow restrict . . . [Michaels]
visitation custody in any way. He found that Michael was not
credible in his accounts of some events and that the claim that
[Laurie] makes that [Michael is] manipulative and that [he] will
do things to manipulate and control[ is] correct.
Michael contests the trial courts findings of fact. He
argues that the superior courts conclusions that he had a
manipulative control over [Laurie] and [over] wom[e]n in general
lacked support in the record. But the superior courts findings
of fact were grounded in the evidence presented at trial.
Specifically, the superior courts findings were supported by the
testimony of Vanessa Jusczak, who accused Michael of threatening
to publish compromising photographs of her, and by Lauries
testimony about Michaels abusive manner of communicating with her
and its effect on her mental and physical health. The superior
court had before it sufficient evidence from which to conclude
that Michael had attempted to manipulate Laurie and that as a
result, their interpersonal relationship . . . hurt[] the child.
The courts findings of fact were supported by the record and were
not clearly erroneous.
Michael also suggests that the trial court improperly
weighed Michaels employment with the United States Army against
him because the risk of deployment or restationing made his home
less stable.17 Testimony at trial showed that Michael was
deployable, and child custody investigator Wharton indicated that
this counted in favor of Laurie because [Bryanna] would not have
to move so many times. Laurie responds that the [s]uperior
[c]ourt did not take [Michaels] deployable status into
consideration when making its determination. Judge Downes never
referred to Michaels potential deployment in his findings on the
stability and continuity of Bryannas custody. Thus, Michaels
argument that the trial court relied on Michaels deployable
status when making the stability determination is without merit.
C. The Superior Court Did Not Abuse Its Discretion by
Failing To Consider All of the Statutorily Mandated
Factors.
Michael claims that the superior court erred by failing
to consider all of the statutorily mandated factors. But the
trial court need not make express findings on all statutory
factors; instead, its findings must either give us a clear
indication of the factors which the superior court considered
important in exercising its discretion or allow us to glean from
the record what considerations were involved.18 Judge Downes made
lengthy oral findings which proceeded through the best interests
factors delineated in the statute. Because Judge Downess oral
findings contemplated all relevant statutory factors and gave us
a clear indication of the factors he considered important, his
findings were sufficient.
Michael next contends that the court abused its
discretion by failing to take into account the recommendation of
the court-appointed child custody investigator, Eric Wharton,
that Michael retain primary physical custody. But the trial
court is not obligated to accept the recommendation or opinion of
the child custody investigator.19 [C]ustody investigators are
simply expert witnesses and . . . their recommendations should be
evaluated on a case-by-case basis, in the same manner as
testimony presented by other witnesses.20 Because custody
investigators recommendations are granted no particular
deference, trial courts are free to reject those opinions
provided that the evidence as a whole supports the courts
decision.21 It was not an abuse of discretion to disregard
Whartons recommendations.
In a separate but related claim, Michael contends that
the superior court erred by failing to take into account the
recommendation of Bryannas child psychologist, Dr. Steven
Fitzgerald, who recommended that Bryannas best interests as a
developing child would be served by her remaining in the physical
custody of her natural father. But Dr. Fitzgerald was not called
to testify, and his report was not introduced as evidence during
the hearing; instead, his opinions were recorded in Whartons
custody investigation report. And regardless of its evidentiary
status, just as the superior court was free to reject the
recommendations of the child custody investigator, it could
reject Dr. Fitzgeralds opinion.22
Judge Downess findings and custody order were detailed
and based on his careful consideration of the record and the
testimony he heard at trial. His ruling, which was based on the
statutory best interests factors, was not an abuse of discretion.
IV. CONCLUSION
Because Michael has failed to demonstrate that the
superior court abused its discretion, we AFFIRM Judge Downess
custody ruling in all respects.
_______________________________
1 Chesser-Witmer v. Chesser, 117 P.3d 711 (Alaska 2005).
2 Chesser-Witmer, 117 P.3d at 715.
3 Id. at 720.
4 At the time, she did not know where Michael and Bryanna
were living.
5 This case had been administratively transferred to
Judge Downes prior to the May 1, 2005 review date.
6 Evans v. Evans, 869 P.2d 478, 479 (Alaska 1994).
7 Borchgrevink v. Borchgrevink, 941 P.2d 132, 134 (Alaska
1997).
8 Id.
9 J.L.P. v. V.L.A., 30 P.3d 590, 594 (Alaska 2001).
10 Generally, custody orders are considered final and
permanent, although they are always subject to modification under
AS 25.20.110(a). This is the practice because finality and
certainty in custody matters are critical to the childs emotional
welfare. Gratrix v. Gratrix, 652 P.2d 76, 82-83 (Alaska 1982);
cf. Deivert v. Oseira, 628 P.2d 575, 579 (Alaska 1981). While a
temporary order may have been appropriate under the unusual
circumstances of this case, such instances should be rare.
11 See AS 25.20.110(a).
12 117 P.3d at 720.
13 Deininger v. Deininger, 835 P.2d 449, 451 (Alaska
1992).
14 Chesser-Witmer, 117 P.3d at 720.
15 We have previously found such a showing to be
sufficient to constitute a change in circumstances. See Kelly v.
Joseph, 46 P.3d 1014, 1017 (Alaska 2002); Hermosillo v.
Hermosillo, 797 P.2d 1206, 1209 (Alaska 1990).
16 AS 25.24.150(c) outlines the nine factors a court must
take into account when determining the best interests of a child:
(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 . . . 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.
17 We have held that a continuity test centered entirely
on the childs geographic stability would always favor placing the
child with the non-moving parent. Meier v. Cloud, 34 P.3d 1274,
1279 (Alaska 2001). As a result, it is impermissible to treat
the move itself (assuming it is a legitimate move) as a best-
interests factor weighing against the moving parent. Chesser-
Witmer, 117 P.3d at 719 (quoting Moeller-Prokosch v. Prokosch, 53
P.3d 152, 157 (Alaska 2002)).
18 Smith v. Weekley, 73 P.3d 1219, 1225 (Alaska 2003) (In
undertaking this best interests analysis, the trial court need
not specifically address the statutory factors detailed in AS
25.24.150(c), and make explicit ultimate findings that the best
interests of the children require the custodial disposition
reached. ) (quoting Borchgrevink, 941 P.2d at 139-40).
19 See Ebertz v. Ebertz, 113 P.3d 643, 647 (Alaska 2005).
20 Id.
21 Id. at 648.
22 See id. at 647.
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