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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

Chesser v. Chesser-Witmer (03/21/2008) sp-6241, 178 P3d 1154

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
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) Supreme Court No. S- 12158
Appellant, )
) Superior Court No. 4FA-01-00112 CI
v. )
) O P I N I O N
) 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.

          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.
          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
          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
          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.
     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
          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
          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
     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
          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.
          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

     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

     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
               (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
               (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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