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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Littleton v. Banks (09/12/2008) sp-6304

Littleton v. Banks (09/12/2008) sp-6304, 192 P3d 154

     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

DANNIELLE LITTLETON, )
) Supreme Court No. S- 12508
Appellant, )
) Superior Court No.
v. ) 3AN-03-13071 CI
)
ROBERT BANKS, JR., ) O P I N I O N
)
Appellee. ) No. 6304 - September 12, 2008
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Morgan Christen, Judge.

          Appearances:  David  R.  Edgren,  Edgren  Law
          Offices,   LLC,  Anchorage,  for   Appellant.
          Kathleen A. Weeks, Law Offices of Kathleen A.
          Weeks, Anchorage, for Appellee.

          Before:    Fabe,  Chief  Justice,   Matthews,
          Carpeneti,  and Winfree, Justices. [Eastaugh,
          Justice, not participating.]

          CARPENETI, Justice.

I.   INTRODUCTION
          A  father  moved to modify a shared custody arrangement
so  that he could relocate with his daughter to another town. The
superior court granted sole legal and primary physical custody to
the father.  The mother contends that the superior court erred by
relying  primarily  on  a report prepared  by  a  court-appointed
custody  investigator who failed to notify  the  court  upon  her
appointment  that  she had recently traveled  to  Peru  with  the
fathers  attorney. Because the courts findings were  sufficiently
supported by evidence other than the custody report, we  conclude
that any error in relying on the custody investigators report was
harmless.  We therefore affirm the lower courts award of custody.
II.  FACTS AND PROCEEDINGS
          Dannielle Littleton and Robert Banks (Bob) met sometime
around   1997  when  Bob  started  to  treat  Dannielle  at   his
chiropractic  practice.   They  married  in  2000.  At  the  time
Dannielle  had  two  young sons from previous relationships,  one
born  in 1997 and one born in 1999.  Dannielle gave birth to  the
couples only child, a daughter, in October 2000.
          Both   of  Dannielles  sons  have  behavioral  problems
resulting from multiple mental health issues.  Her older son  has
been   diagnosed   with  Bipolar  Disorder,   ADHD,   PTSD,   and
Oppositional  Defiant  Disorder, and  his  treating  psychiatrist
reported  that  he experienced  command auditory  hallucinations,
directing  him  to murder himself and others, and the  devil  was
telling  him  to do so.  The younger boy has been diagnosed  with
Bipolar  Disorder,  manic,  severe  (provisional);  ADHD;   PTSD;
Oppositional  Defiant Disorder; and Encopresis.  In  addition  to
his  diagnosed  psychiatric  issues, this  child  had  difficulty
getting along with his sister, Dannielle and Bobs daughter.
          Several  reports  by  the Office of Childrens  Services
(OCS)  were filed regarding Dannielle and Bobs care of the  boys.
These  included reports against Dannielle after the  younger  boy
was  born  positive  for marijuana and reports  against  Bob  for
striking  both  boys.   There were also OCS reports  of  domestic
violence between Dannielle and Bob.
          Dannielle and Bob divorced in May 2004; their  daughter
was  three  years old at the time.  The court granted  Bob  legal
custody  of  the  child  and  granted Dannielle  and  Bob  shared
physical  custody.  Under the shared physical custody arrangement
Bob had the child five days a week and Dannielle had her two days
a  week.   In  its Findings of Fact and Conclusions of  Law,  the
court  reasoned that Bob was the more appropriate sole legal  and
primary  physical custodian because Dannielle had  to  focus  her
energy on her extremely active and very demanding sons as well as
substance  abuse  treatment  and pursuit  of  her  education  and
career.   The  court  advised Dannielle that [w]hen  [the  child]
begins  kindergarten, if [Dannielle] is able to demonstrate  that
she  has remained in compliance with the recommendations  of  her
substance  abuse  treatment  providers  and  mental  health  care
professionals . . . a motion to modify custody may be  considered
based upon an analysis of the best interests of the child.
          Just  over a year later Bob filed his Motion to  Modify
Custody  and  Motion to Change Childs Residence  to  Sitka.   Bob
sought  permission from the court to move so that he  could  take
over  a  chiropractic practice in Sitka.1   Bob  also  filed  his
Motion   to   Reappoint   the  Custody  Investigator   Originally
Appointed,   requesting   that  the   court   reappoint   custody
investigator  Susan Arth.  Dannielle opposed both  motions.   The
court  granted Dannielles request for an evidentiary  hearing  on
the matters, but denied Bobs motion for expedited consideration.
          The  matter  proceeded before a standing  master.   The
master  issued her findings on December 13, 2005.  These findings
included the masters recommendation to reappoint Arth as  custody
investigator.  In her response to the masters findings, Dannielle
          withdrew her opposition to Arths reappointment.  The court
subsequently reappointed Arth.
          Arth  filed her report in May 2006.  The forty-one page
report,  the  longest that Arth had ever submitted  to  a  court,
recommended  that  the  court grant Bob sole  legal  custody  and
primary physical custody.
          Following  the  submission of the report  the  standing
master   resumed  the  child  custody  proceedings.   The  master
requested  that the hearing be moved to the superior court.   The
court  heard  testimony for three days in September  and  October
2006.  While being questioned on cross-examination, Arth revealed
that  she had organized and participated in a ten-person tour  to
Peru  that  included Bobs attorney,  Kathleen Weeks.   This  trip
occurred  in  the  summer of 2004, after  Arths  initial  custody
report  but  before Bobs motion for her reappointment as  custody
investigator.   As  a  result  of this undisclosed  relationship,
Dannielle  moved  to strike Arths report.  The court  denied  the
motion,  finding  that  the custody investigator  was  thoroughly
cross-examined  on  the  content  of  her  report  and   on   her
impartiality.  She credibly testified that the contacts  she  has
had with Ms. Weeks did not influence her recommendations.
          Based  upon evidence presented during trial  and  Arths
recommendations, the court granted Bobs motion  and  awarded  him
sole  legal  and  primary physical custody the couples  daughter;
they now live in Kodiak.  The court noted that Dannielle has done
a much better job of meeting the childrens emotional needs in the
period  since  August of 2005. However, [Bob] has a longer  track
record of meeting [the childs] emotional needs.
          Dannielle appeals.
III. STANDARD OF REVIEW
          We  will  overturn  a  superior  courts  child  custody
determination  only  if the entire record demonstrates  that  the
controlling  findings of fact are clearly erroneous or  that  the
trial  court  abused its discretion.2  We will find  clear  error
where, after a review of the entire record, we are left with  the
definite  impression that a mistake has been  made.3   The  trial
court  abuses its discretion where 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.4
          We  apply the abuse of discretion standard to review  a
trial courts decisions relating to appointment of a child custody
investigator  and  admission  of the  investigators  report  into
evidence.5
IV.  DISCUSSION
     A.   It   Was   Error  To  Decline  To  Strike  the  Custody
          Investigators  Report After It Was  Revealed  that  the
          Investigator Had a Social Relationship with the Fathers
          Counsel.
          In  November  2003, as part of the divorce proceedings,
the court ordered a custody investigation.  Under Alaska Rule  of
Civil  Procedure 90.6(a) the superior court may appoint an expert
.  .  . to investigate custody, access, and visitation issues and
provide  an  independent  opinion  concerning  the  childs   best
          interests. The court-appointed custody investigator, Susan Arth,
submitted  a  report with her recommendations on March  9,  2004.
The  court  followed Arths recommendations and granted  Bob  sole
legal  and primary physical custody of the couples daughter.   In
addition,  the  court explicitly adopted certain  recommendations
from  Arths report, including the provision that the child  never
be left alone with her brothers.
          On  July 25, 2005, Bobs counsel, Kathleen Weeks,  moved
for  Arths  reappointment  to  the case  to  conduct  an  updated
investigation.   Although Arth had moved out of state  after  her
first  investigation,  Weekss  affidavit  stated  that  Arth  has
indicated  a  preliminary willingness to do this on an  expedited
basis  and  anticipates being in the Anchorage area  sometime  in
August.    Dannielle   initially  opposed  Arths   reappointment.
Dannielle  reasoned  that  Arths initial  investigation  was  too
costly,  Arth  had since moved out of state, and  Arth  would  be
rushed  during her short time in Anchorage and forced to rely  on
preconceived  notions.  Dannielle further asserted that  she  was
bothered by the appearance given by Plaintiff and/or his attorney
having been in contact with Arth in advance of making the motion.
The  court signed an order denying Bobs motion to reappoint Arth.
Dannielle   ultimately   withdrew   her   objection   to    Arths
reappointment,  conceding  that such  an  appointment  was  well-
warranted  given  the developments in this  case  over  the  past
several months.  The court reappointed Arth in January 2006.
          Arth  issued  her  custody  report  in  May  2006   and
testified  at  the  trial court proceedings  in  September  2006.
During cross-examination, Arth revealed that Weeks was part of  a
group  of 10 people who [Arth] went on a tour of Peru with.   The
trip  occurred  in  the  summer of 2004, which  was  after  Arths
initial custody report but before her reappointment to the  case.
Arth  did not reveal her contact with Weeks to the court because,
as  she stated, I didnt see any need to.  If I had, I would have.
Certainly  the  fact that we went on this tour  together  has  no
impact  on whether I believe Mr. or Mrs. Banks is better able  to
meet  [the  childs]  needs.   Arth  further  testified  that  she
organized the tour and solicited Weeks to attend the trip because
she needed a minimum of ten people to join the tour and Weeks had
previously expressed an interest in traveling to Peru.  Based  on
this failure to disclose, Dannielle moved to strike Arths report,
citing Rule 90.6(c).  The court denied Dannielles motion.
          Rule  90.6(c) provides: The custody investigator  shall
disclose   any   relationships  or   associations   between   the
investigator  and  any  party which might  reasonably  cause  the
investigators  impartiality  to be questioned.   This  disclosure
must  be  made no later than 10 days after appointment.  We  have
only  examined Rule 90.6 on a few occasions and never  subsection
(c), the subsection at issue here.6
          We  examine first whether Arths relationship with Weeks
is  covered  by  Rule 90.6(c), a question that turns  on  whether
Arths travel with Weeks qualifies as a relationship between  Arth
and  any  party.  Rule 90.6 requires disclosure  if  the  custody
investigator  has a relationship or association with  any  party.
Our  case law offers little guidance on this question.   We  have
          previously examined the definition of the word party in the
context  of judicial disqualification.  In Blake v. Gilbert,7  we
declined to find an abuse of discretion in the failure of a judge
to recuse himself from a case in which a defendant was a business
partner  of  the judges nephew.8  After analyzing divergent  case
law  from other jurisdictions about the construction of the  term
party,  we  declined to extend party status to the judges  nephew
because the outcome of the case would only indirectly affect [the
judges nephews] interest.9
          Unlike   Blake   where  the  lawsuit  only   indirectly
threatened  a  partys  interest  here the parties  faced  a  more
direct  threat that their interests would be affected.   Although
Dannielle concedes that [i]t is plain on its face that  a  partys
attorney  is, by definition, not a party, we conclude  that  this
personal  association between the custody investigator  and  Bobs
attorney   could   directly  affect  Arths  recommendations   and
therefore have a direct effect on the parties.
          Having  established  that  Rule  90.6(c)  applies,  our
inquiry now turns to whether Arth violated the rule by failing to
apprise  the  superior court of her association with  Weeks,  and
whether  this relationship reasonably brings into question  Arths
impartiality.   We  previously  examined  this  question  in  the
context of a custody investigator who publicly proclaimed herself
an  advocate  for  mothers.  In Ogden v. Ogden,10  the  appellant
father  in a child custody case argued that the custody  decision
should  be reversed and the child custody investigator should  be
disqualified  because  the  investigator  demonstrated  bias   by
advertising  herself  as a Voice for Women  and  Children.11   We
agreed that the advertisement created an appearance of bias,  but
upheld the superior courts decision because it was clear that  it
was  based  on the evidence introduced at trial rather  than  the
investigators   report.12    We   explicitly   noted    that    a
court-appointed child custody investigator is ordinarily  subject
to  disqualification upon a showing of either actual or  apparent
bias.13
          Rule  90.6(c) required Arth to disclose within ten days
of   her  appointment  any  relationship  that  could  bring  her
impartiality into question.  Even if Arths investigation, as  she
testified,  was  not biased by her travels with  Weeks,  she  was
still obligated to reveal that relationship because it could lead
to  the  appearance of bias.  As Ogden reasoned: [T]he  litigants
initial  suspicions [of bias] would be likely to  jeopardize  the
reliability  of the investigation; for the effectiveness  of  the
process itself largely depends on the confidence and trust of all
interested  parties.14  For this reason, after-the-fact  judicial
determination  of  the experts neutrality  does  not  repair  the
original  damage  and  cannot  excuse  the  initial  failure   to
disclose.   We therefore conclude that it was error  to  fail  to
strike  the  custody investigators report when  her  relationship
with counsel for one of the parties was disclosed.
     B.   There  Was Sufficient Evidence, Aside from the  Custody
          Investigators  Report, To Support Granting  Custody  of
          the Couples Daughter to the Father.
          In making its custody determination, the superior court
          relied on Arths report as well as witness testimony and medical
records.   Because we hold above that it was error to  admit  the
custody    investigators   report   and   to   rely   upon    its
recommendations, we examine this issue without reference to Arths
report and by looking only to other evidence presented at trial.15
          1.   The courts detailed analysis and thorough findings
               considered  without reference to the  Arth  report
               supported its conclusion that Bob should have sole
               legal custody.
          Alaska   Statute  25.24.150(c)  instructs   courts   to
determine  custody  by considering nine best interest  factors.16
The superior court examined each of these nine factors.  For each
factor it described the pertinent facts and analyzed whether  the
factor  favored  Bob, Dannielle, or neither parent.   The  courts
best  interest  findings were thorough and careful;  we  conclude
that the court did not err in its analysis.
          The  courts detailed analysis of all the best  interest
factors  led  it  to  conclude that each  factor  either  favored
granting  custody to Bob or did not favor either party.   Of  the
three   factors  that  favored  Bob   the  three  that  Dannielle
challenges in her appeal   the court supported its analysis  with
evidence in the record.
          The  courts  most  extensive analysis  dealt  with  the
ability  of each parent to meet the childs emotional needs.   The
court  found  that the most significant factor  in  weighing  the
parties respective abilities to provide for [the childs] physical
safety  and  emotional well being arises from  [Dannielles  sons]
mental health histories.  Dannielle contends that the court erred
by  relying  on  this evidence because it was  presented  through
Arths  report.  Although Arths report covers the history  of  the
boys   illnesses  in  great  detail,  their  mental  health   and
behavioral  difficulties  were  presented  elsewhere  during  the
trial.   In fact, much of the information about the boys behavior
was  presented  during Dannielles testimony.  For  instance,  the
court noted that since the 2004 custody order both boys had  been
hospitalized   at   North  Star  Hospital  for  their   troubling
psychiatric disorders.  Dannielle testified to this fact  in  the
hearing.   The  court  admitted  the  boys  medical  records   as
exhibits.   In  addition,   Dr.  Michael  Robertson,  a  licensed
psychiatrist from the North Star Hospital who treated  Dannielles
sons,  testified regarding his treatment of the boys.  Dannielles
mother  testified  that  she  witnessed  Dannielles  older   sons
sexualized  behavior and that she had seen the younger  boy  bite
his  brother.   While both Dannielles mother  and  Dr.  Robertson
testified  that the boys do not present a risk of harm  to  their
sister,  they still offered sufficient evidence for the court  to
conclude  that  the  boys  behavioral difficulties  may  make  it
difficult  for  Dannielle  to  provide  a  safe  and  emotionally
supportive environment for her daughter while also attempting  to
handle  her  sons.  The court thus did not clearly  err  on  this
issue.
          The  court also found that the stability and continuity
factor favored Bob. While Dannielles living situation at the time
of  trial  was stable, the court noted that she had a history  of
          unstable living situations.  Dannielle contends that the court
erred  in  its conclusion because Bobs move to Kodiak, away  from
Anchorage  where  the  two parties were able  to  share  custody,
demonstrates that Dannielle offered a more stable and  continuous
environment for her daughter.  But the court  had ample  evidence
to  reach  the  opposite conclusion: that Bob would  be  able  to
provide  a  more stable and continuous living situation  for  the
child.  Before moving to Kodiak, Bob had lived in the same  house
since before the childs birth.  Bob testified that he intends  to
stay in Kodiak for an extended period to raise his daughter,  and
his  purchase  of  a  chiropractic business  there  supports  his
intention  to establish roots in the community.  Dannielle,  even
though  currently  in  a  stable  living  environment  (she   has
remarried), had previously maintained a more itinerant lifestyle.
These facts are supported by evidence independent of Arths second
report.  For example, Arths initial custody report, which has not
been  challenged  and  which was adopted by  the  courts  initial
custody  determination, noted that Dannielle had  lived  in  four
residences  in  the preceding five years and had worked  for  six
employers in five years.
          Finally,  the  court  found that  the  substance  abuse
factor  favored Bob because [t]he concerns regarding [Dannielles]
substance  abuse are more significant than the history of  [Bobs]
substance abuse, primarily because the evidence establishes  that
[Dannielle]  has  abused  alcohol since the  time  she  completed
alcohol  treatment.  Dannielle counters that the court  erred  on
this issue because it found that there was no evidence of alcohol
abuse  since 2005.  She contends that the superior court  further
erred  by  finding  this a strike against her when  Sharol  Ledin
Bobs  current  girlfriend and occasional child care provider  for
his  daughter   also  drinks occasionally despite  admitted  past
alcohol  abuse.   The  evidence  supports  the  superior   courts
conclusion.  Dannielle admitted that she had reported to her sons
doctor  that even after ending her substance abuse treatment  she
was drinking more to help her sleep.  She also testified that she
received the treatment she was required to receive by the courts,
but  no longer attends Alcoholics Anonymous meetings now that she
has   fulfilled  her  requirements.   Ledin,  also  an   admitted
recovering   alcoholic,   testified   to   voluntary   treatment,
infrequent  drinking,  and  continued  attendance  at  Alcoholics
Anonymous   meetings.  Because Dannielle has  a  high  burden  to
overcome,  and  because there is evidence  independent  of  Arths
report to support the courtss findings, the court did not clearly
err by concluding that this factor favors Bob and that Dannielles
substance abuse problems pose more of a threat than Ledins.
          Of  the three factors that the court found favored Bob,
the  court had ample evidence beyond Arths report to support  its
conclusion.  The court supported its findings with this  evidence
apart  from  the  evidence  in Arths report,  and  therefore  had
sufficient grounds to reach these conclusions.
          2.   The  court did not err in granting Bob sole  legal
               custody despite Alaskas preference for joint legal
               custody.
          The  court  awarded  Bob  sole  legal  custody  of  his
daughter,  finding  that [t]he parties ability  to  cooperatively
communicate  has  not  improved since the time  of  the  original
order.   Dannielle contends that the court erred in granting  Bob
sole  legal  custody in light of Alaskas preference for  granting
parents joint legal custody.  Dannielle concedes that she and Bob
continue to have communication difficulties, but argues that  the
court erroneously ignored the best interest factors in making its
custody determination.
          The  court  stated that the situation had not  improved
since  the  time of the original order.  That 2004  order  found:
The  parties have not done well communicating during the  interim
period,  even about concerns related to their daughter .  .  .  .
The  number of interim issues brought to the court for resolution
was  atypical, and does not bode well for the parties ability  to
effectively communicate and cooperate in the short term.
          As  Bob correctly notes, joint legal custody depends in
large  part  on  the  ability  of the parents  to  communicate.17
Dannielle concedes that communication between the two, which  was
poor  at the time of their divorce, has not improved.  Therefore,
the court did not abuse its discretion by granting Bob sole legal
custody of the child.
V.   CONCLUSION
          It was error to admit the custody investigators report.
That error, however, was harmless as the superior court had ample
other  evidence to support its conclusion.  It therefore did  not
err  in  granting Bob sole legal and primary physical custody  of
the  parties daughter.  We accordingly AFFIRM the judgment of the
superior court.
_______________________________
     1     Bobs  deal  with  the Sitka chiropractic  office  fell
through and he then decided instead to buy a practice in Kodiak.

     2    Harvey v. Cook, 172 P.3d 794, 797 (Alaska 2007).

     3    Thomas v. Thomas, 171 P.3d 98, 102 (Alaska 2007).

     4    Id. (internal citations omitted).

     5    Ogden v. Ogden, 39 P.3d 513, 516 (Alaska 2001).

     6     Only four Alaska cases discuss Rule 90.6.  Iverson  v.
Griffith,  180  P.3d 943, 947-48 (Alaska 2008) (referencing  Rule
90.6(a)    and   discussing   appointment   of   child    custody
investigator); Keller v. Reft, 71 P.3d 800, 809-10 (Alaska  2003)
(discussing  Rule 90.6(i), which requires parties to split  costs
for custody investigators unless court finds good cause to change
this  allocation); In re Adoption of L.E.K.M., 70 P.3d 1097, 1105
(Alaska  2003) (referencing Rule 90.6(b) and (g), and  discussing
custody   investigators  qualifications  and  alleged  ex   parte
contacts);  R.M.  v.  S.G., 13 P.3d 747, 752 n.15  (Alaska  2000)
(referencing  Rule 90.6(a) and finding that custody investigators
are akin to experts).

     7      702  P.2d  631  (Alaska  1985)  (overruled  on  other
grounds).

     8    Id. at 640-41.

     9    Id. at 641 (emphasis in original).

     10    39 P.3d 513.

     11    Id. at 515.

     12    Id. at 517.

     13    Id. at 516-17.

     14    Id. at 517.

     15    Dannielle requests a remand for a new consideration of
the  modification motion without the child custody  investigators
report  or evidence.  She does not seek a direction to the  trial
court  to appoint a new child custody investigator or to  hold  a
new hearing.  Thus, we conclude that our own review of the record
without the child custody investigators input is appropriate.

     16    These factors include:

          (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, except that the  court
          may not consider this willingness and ability
          if one parent shows that the other parent has
          sexually  assaulted  or 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;
          (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; and
          (9)   other   factors  that  the  court  considers
     pertinent.
     17     See Farrell v. Farrell, 819 P.2d 896, 899-900 (Alaska
1991) ([J]oint legal custody is only appropriate when the parents
can cooperate and communicate in the childs best interest.).

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