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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Parks v. Parks (08/07/2009) sp-6397

Parks v. Parks (08/07/2009) sp-6397

     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


TRACY H. PARKS, )
) Supreme Court No. S- 12984
Appellant, )
) Superior Court No. 3AN-07-8352 CI
v. )
) O P I N I O N
ROBERT J. PARKS, )
) No. 6397 - August 7, 2009
Appellee. )
)

          Appeal  from the Superior Court of the  State
          of   Alaska,   Third  Judicial  District   at
          Anchorage, Jack Smith, Judge.

          Appearances: Allison E. Mendel  and  Mary  A.
          Gilson,  Mendel & Associates, Anchorage,  for
          Appellant.    Robert  J.   Parks,   pro   se,
          Anchorage.

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

          PER CURIAM.

I.   INTRODUCTION
          I.   The trial court presiding over the divorce proceeding
between  Tracy  Parks and Robert Parks granted the parties  joint
legal  custody  of their daughter.  Tracy argues that  the  trial
court  erred because it did not apply AS 25.24.150(g)s rebuttable
presumption against awarding joint legal custody to a parent with
a  history  of perpetrating domestic violence.  She  also  argues
that the trial court erred because (1) it should not have awarded
Robert   a  self-executing  future  change  from  supervised   to
unsupervised  visitation; (2) the award of  joint  legal  custody
conflicts  with  a  long-term domestic violence protective  order
that  limits  contact between the parties; (3) the  court  should
have  put its oral findings in writing; and (4) the court  should
have  specified how the visitation schedule will change if  Tracy
moves out of state.
          We  affirm in part, vacate in part, and remand, because
further  factual  findings  are necessary  to  determine  whether
subsection  .150(g) applies, and because it was error  to  permit
Roberts  visitation  to  become unsupervised  without  a  further
order.   But  joint  legal custody does not necessarily  conflict
with   the  long-term  protective  order,  and  the  trial  court
permissibly  declined to reduce its oral findings to writing  and
to  specify  how  visitation will change if Tracy  moves  out  of
state.
II.  FACTS AND PROCEEDINGS
          Robert  and Tracy Parks were married in February  2005.
Their daughter was born in August 2006.
          On  April  14, 2007, Robert assaulted Tracy.  He  threw
things  at  her  and tore off some of her clothes,  resulting  in
multiple  bruises.   On April 18 Tracy was granted  a  short-term
domestic violence protective order barring Robert from initiating
contact with Tracy or her parents.  A long-term domestic violence
protective  order  was  granted on  May  7  barring  Robert  from
contacting Tracy or her parents.  The long-term protective  order
has   been   modified  several  times  since,  but   these   same
restrictions  still apply.  The long-term protective  order  will
remain in place until February 11, 2010.
          Robert  and  Tracy separated the day of the April  2007
assault.  Tracy and their daughter continued to live on Elmendorf
Air  Force Base, where Tracy is an enlisted member of the  United
States Air Force.  On May 17 Robert pleaded no contest to assault
and  was  given a one-year suspended imposition of sentence,  was
ordered  to pay a fine, and was required to have no contact  with
Tracy  (except for telephonic contact when she initiated it)  and
complete  a  state-approved  twenty-four-week  domestic  violence
intervention  program within six months.  On May  31  Robert  was
banned  from the base because staff believed he was a  danger  to
employees and possibly a danger to Tracy.
          Tracy filed for divorce on July 3, 2007.
          On  October  3  the trial court conducted  a  long-term
protective  order   modification hearing in  conjunction  with  a
custody hearing.  Tracy alleged in the superior court that Robert
violated  the  long-term  protective  order  multiple  times   by
contacting Tracy and telephoning her mother.
          The  divorce case went to trial in November 2007.  Both
parties  were then unrepresented.  Robert admitted at trial  that
he  has  anger issues.  He admitted he once threw water on  Tracy
before  the April 2007 assault, was fired for throwing  water  on
his  boss,  and  broke  a mans nose.  A former  wife  of  Roberts
testified  at  this divorce trial that Robert had  assaulted  her
once.   Robert testified that he did not assault her.  As of  the
time  of  the  divorce  trial, Robert  had  begun,  but  had  not
completed, the required domestic violence program.  At the end of
the trial, the court granted the divorce and ordered division  of
the property.
          The  trial  court issued oral and written  findings  of
fact  and  conclusions of law regarding custody on  November  19.
The court found that there was evidence of domestic violence .  .
.  or  a history of violence.  The oral and written findings  and
conclusions did not mention AS 25.24.150(g).1
          The  trial  court granted primary physical  custody  to
Tracy  and awarded the parties joint legal custody.  It issued  a
visitation  plan  initially allowing only supervised  visitation,
but  providing for an automatic change to unsupervised visitation
when   Robert   completed  a  state-approved  domestic   violence
treatment program.  The court orally ordered that Robert  provide
Tracy  and  the  court with evidence showing  that  the  domestic
violence  treatment program he was then enrolled  in  was  state-
approved.  Robert was not required to prove to the court that  he
had completed the program.
          Tracy    retained   an   attorney   and    moved    for
reconsideration,  arguing  that  the  court  had  overlooked   or
misapplied  AS 25.24.150(g) and had not properly considered  that
the   long-term  protective  order  prevented  the  parties  from
cooperating.   She  also  argued that the  courts  findings  were
insufficient to support its conclusions and that it was error  to
give Robert a self-executing change to unsupervised visitation.
          The  court  issued  additional  findings  of  fact  and
conclusions  of law in which it decided that AS 25.24.150(g)  did
not  apply, reasoning that the April 2007 incident did not result
in  serious physical injury and that the water-throwing  incident
was not an additional incident of domestic violence because there
was no evidence Tracy was afraid before or afterwards.  The court
also  found that Robert had credibly denied assaulting  a  former
wife.
          Tracy again moved for reconsideration, arguing that the
court should have applied AS 25.24.150(g) and requesting that the
court clarify its findings and conclusions in writing.  The court
denied  Tracys motion but gave her ten days in which to submit  a
draft custody order to clarify any unclear portions.  It does not
appear that Tracy filed a draft custody order.
          Tracy appeals.

III. STANDARD OF REVIEW
          A  superior  court  has broad discretion  to  determine
custody   awards  in  a  divorce  proceeding  so  long   as   the
determination  is  in  a  childs best interests.2   We  will  not
reverse a superior courts custody determination unless it  abused
its  discretion or its controlling factual findings  are  clearly
erroneous.3
          The  superior  court  abuses  its  discretion  when  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   The  superior  courts  factual  findings  are  clearly
erroneous  if a review of the entire record leaves  us  with  the
definite  impression that a mistake has been made.5  If  a  party
challenges  the adequacy of findings, we review the  findings  to
          decide whether they give a clear indication of the factors
considered important by the trial court or allow us to  determine
from the record what considerations were involved.6
IV.  DISCUSSION
     A.   Whether  It  Was  Error Not To Apply  AS  25.24.150(g)s
          Rebuttable Presumption Against Joint Legal Custody
          
          Alaska   Statute  25.24.150(g)  creates  a   rebuttable
presumption  against  awarding sole or joint  legal  or  physical
custody  to  a parent who has a history of perpetrating  domestic
violence  against the other parent.7  Per subsection  .150(h),  a
parent  has  a history of perpetrating domestic violence  if  the
court  finds  that during one incident of domestic violence,  the
parent  caused  serious physical injury or . . . the  parent  has
engaged in more than one incident of domestic violence.8
          If  subsection .150(g) applies, the presumption can  be
overcome  if  a  preponderance of the  evidence  shows  that  the
perpetrating  parent has successfully completed  an  intervention
program for batterers [and] does not engage in substance abuse.9
          Tracy  argues  that the trial court  clearly  erred  by
finding  that  Robert  did  not have a  history  of  perpetrating
domestic violence, and that the trial court erroneously failed to
apply  subsection .150(g).  She gives three reasons  for  arguing
that Robert has a history of perpetrating domestic violence:  (1)
the  water-throwing  incident  was  an  additional  incident   of
domestic   violence;  (2)  Roberts  violation  of  the  long-term
protective order was an additional incident of domestic violence;
and  (3)  the  April  2007 assault resulted in  serious  physical
injury.   She also argues that the trial court did not adequately
relax  procedural requirements for the pro se litigants at  trial
and  abused  its  discretion by failing to elicit  details  about
Roberts alleged conduct.
          1.   Whether it was error to find that the water-throwing
               incident was not an additional incident of domestic violence
               
          Robert  admitted at the November 16 trial that  he  had
once thrown water in Tracys face.  The trial court concluded that
this was not an act of domestic violence because it reasoned that
the  act  was not sufficient misconduct, at least in part because
Tracy  did  not testify that she was afraid before or  after  the
incident.   Tracy  argues  that  this  conclusion  was  erroneous
because  domestic violence, as that term is used in AS 25.24.150,
does not require that the victim be afraid.
          Alaska  Statute  25.90.010 provides that  in  Title  25
 domestic violence and crime involving domestic violence have the
meanings   given  in  AS  18.66.990.   Alaska  Statute  18.66.990
provides in pertinent part:
               (3)    domestic   violence   and   crime
          involving domestic violence mean one or  more
          of the following offenses . . . or an attempt
          to  commit the offense, by a household member
          against another household member: (A) a crime
          against the person under AS 11.41.
          
Alaska  Statute  11.41.230(a)(3) defines assault  in  the  fourth
degree as recklessly plac[ing] another person in fear of imminent
physical injury.
          Throwing water at Tracy was therefore domestic violence
          within the meaning of AS 25.24.150 if Robert, in doing so,
attempted  to place her in fear of imminent physical injury.   It
is  irrelevant  whether Tracy was actually placed  in  fear.   We
therefore remand for a determination whether Robert attempted  to
place  Tracy  in fear of imminent physical injury when  he  threw
water  at her.  If he did, the trial court must determine whether
Robert  has  overcome AS 25.24.150(g)s presumption against  joint
legal custody.10
          2.   Whether it was error not to find that Roberts alleged
               violations of the long-term protective order were additional
               incidents of domestic violence
               
          Alaska  Statute 18.66.990(3) defines domestic  violence
to   include   (G)   violating  a  protective  order   under   AS
11.56.740(a)(1).11  In finding that there was only one incident of
domestic  violence,  the  trial  court  did  not  address  Tracys
allegation that Robert violated the long-term protective order.12
          Several  witnesses  at  the  October  3,  2007  hearing
testified  that Robert had telephoned Tracy and sent  her  gifts,
and  had  telephoned  Tracys mother to  ask  about  Tracy.   Such
conduct could be deemed to have violated the long-term protective
order, which prohibited Robert from initiating contact with Tracy
or  her  mother.   Because Robert admittedly assaulted  Tracy  on
April  14,  2007,  if  he also violated the long-term  protective
order,  it  was error to find that only one incident of  domestic
violence occurred.
          But the court made no findings following the October  3
hearing  or  the November custody trial about whether Robert  had
violated the long-term protective order.  We therefore remand for
a  determination whether Robert violated the long-term protective
order  and,  if  he  did, whether he has overcome  the  statutory
presumption against joint legal custody.
          3.   Whether it was error to conclude that the April 2007 assault
               did not result in serious physical injury
               
          1.   The trial court found that Robert did not have a history of
domestic  violence  under AS 25.24.150  because  his  April  2007
assault  on  Tracy  did not cause serious physical  injury.   The
court applied the definition of serious physical injury found  in
AS   11.81.900(56).13   Tracy  argues  that  this  is  the  wrong
definition  because Title 25 does not explicitly incorporate  the
definition set out in AS 11.81.900(56).14
          Title  25  does not define serious physical injury  and
this  court  has  not yet interpreted the term.  The  legislative
history  of the 2004 bill that added subsections .150(g)(i)  does
not  address  the  meaning of serious physical injury  and  sheds
little light on the meaning of the phrase.
          We  hold  that Title 11s definition of serious physical
injury  applies  to  AS 25.24.150.  The legislature  provided  no
other definition that might apply.  We assume it would have  done
so  if  it  had  wanted  some  other definition  to  apply.   The
statutory  presumption  that arises once a  history  of  domestic
violence is found is sufficiently onerous and disruptive that  we
are unpersuaded that the legislature expected courts to adopt and
          apply some less rigorous or common law definition.  The trial
court  therefore  did not err in applying Title  11s  definition.
Tracy does not dispute or appeal the trial courts conclusion that
the  April 2007 assault did not result in serious physical injury
as that term is defined in Title 11.
          4.   Whether it was error not to relax procedural requirements
               and elicit details about the alleged domestic violence
               
          1.   Tracy argues that because the parties were pro se, the trial
court should have relaxed procedural requirements in order (1) to
inform  Tracy  that,  because the court did not  believe  Roberts
former  wifes  testimony, Tracy could not use his  alleged  abuse
against  his  former wife to meet the history of  domestic  abuse
requirement, and (2) to inquire further into whether  the  water-
throwing incident made Tracy afraid.15
          In  denying  Tracys second motion for  reconsideration,
the trial court stated:
          During  a  divorce trial, the court does  not
          aid either party in presentation of evidence.
          That  applies whether or not one party has  a
          history  of  domestic violence.   During  the
          custody portion of a trial, the focus  is  on
          the best interests of the children, but again
          assisting  one party to present  evidence  or
          call witnesses would not occur.
          
          Tracys  argument  that  the  trial  court  should  have
informed  her that Roberts alleged abuse of a former  wife  would
not   satisfy  the  history  of  domestic  abuse  prong  is   not
persuasive.   In essence, Tracy is inviting us to create  a  rule
requiring  trial courts to inform pro se parties  of  the  courts
witness  credibility  assessments during trial.   We  decline  to
adopt  such a rule because it would go beyond our decisions  that
hold  that a trial judge should inform a pro se litigant  of  the
proper procedure for the action he or she is obviously trying  to
accomplish.16  And such a rule would require the trial  court  to
assist  one party in presenting the evidence needed to  meet  the
partys evidentiary burdens at trial, and would potentially create
an appearance that the court is no longer impartial and unbiased.

          Tracys argument that the court should have made further
inquiries  into  the water-throwing incident is more  persuasive.
Alaska  Statute  25.24.150(g) requires trial courts  to  consider
alleged incidents of domestic violence, and here the trial  court
was  in  a position to question the pro se litigants about  facts
relevant to the issue.  On remand, the trial court should solicit
from  the  parties the information it needs to determine  whether
the water-throwing incident was an act of domestic violence.
     B.   Whether It Was Error To Order an Automatic Future Change
          from Supervised to Unsupervised Visitation
          
          A.   Tracy argues that, even if AS 25.24.150(g) does not apply,17
the  trial court erred by ordering that Roberts visitation  would
automatically  change  from supervised to  unsupervised  when  he
completed   an   approved  domestic  violence  program,   without
          requiring Robert to file proof of completion with the court.18
The  courts  parenting  plan requires Robert  to  participate  in
Alcoholics  Anonymous  (AA) meetings,  report  to  Tracy  on  his
attendance, and have his AA sponsor report to Tracy about Roberts
participation.  Tracy contends that the trial  court  abused  its
discretion because it is not in their daughters best interest  to
allow  Robert  unsupervised visitation without requiring  him  to
prove  his compliance to the court.  She argues that an eighteen-
month-old  child  is  not well-situated to protect  itself  if  a
parent  is  impaired or dangerous and that it  is  not  in  their
daughters  best  interest  for  Tracy  to  bear  the  burden   of
monitoring   Roberts  compliance  with  the  courts  requirements
because Tracy has no way to know whether Roberts reports or those
of  his  AA sponsor are accurate and honest.  Robert contends  in
response that the court did supervise Roberts completion  of  the
domestic violence program.
          Tracys argument is persuasive.  It does not appear that
she  has  access to all the information necessary  to  show  that
Robert had not complied with the requirements, and the court  did
not  explain why she should have the burden of persuasion on this
issue.   We  assume  Robert had ready access to  the  information
needed  to  report  accurately.  Because the  burden  of  proving
compliance   with   the  AA  and  domestic   violence   treatment
requirements was not placed on Robert, it was possible  he  could
obtain  unsupervised  visits without  having  actually  satisfied
either  requirement.   We  conclude  that  the  automatic  change
provision  was  not  in their daughters best interests  and  that
entering it was therefore an abuse of discretion.19  Robert should
have  the burden of demonstrating to the trial court that he  has
changed enough to justify increased or unsupervised visitation.
          We  are also unconvinced by Roberts contention that the
court  did  supervise  completion of  Roberts  domestic  violence
program.   The  court merely questioned Roberts participation  in
the  program,  recommended  that  he  make  the  records  of  his
enrollment available to the court, heard testimony that he was on
his way to graduating from the program, and concluded that he was
eight  weeks from finishing. Furthermore, Robert enrolled in  the
Cook  Inlet  program,  and  not one  of  the  two  state-approved
domestic  violence programs; he was unaware that he was  supposed
to  have  cleared  the  Cook Inlet program with  the  prosecutors
office.   The court, in its oral findings, noted that  there  was
testimony [Robert] provided and his case manager from Cook  Inlet
provided that would indicate that the [M]unicipality of Anchorage
has  accepted the treatment . . . to meet their requirements  for
domestic  violence  treatment.  But the  court  also  noted  that
Robert must provide both mother and the court record something in
writing  from the municipality indicating thats, in  fact,  true.
As  of  the  date the trial court denied Tracys first motion  for
reconsideration, Robert had not filed that confirming paperwork.
     C.   Whether It Was Error To Award Joint Legal Custody when the
          Long Term Protective Order Limited Contact Between the Parties
          
          Tracy  argues  that the trial court  erred  by  finding
that, as joint legal custody requires, Tracy and Robert can  work
          together on major issues concerning their daughter.20  She argues
that  the  finding  was clearly erroneous  because  there  is  no
evidence  Tracy  and  Robert  can  cooperate,  and  that  Roberts
banishment from Elmendorf Air Force Base shows they cannot.   She
also  argues  that the court erred by requiring  the  parties  to
cooperate   because  cooperation  conflicts  with  the  long-term
protective order.
          In  denying Tracys similar argument on reconsideration,
the  trial  court stated that the long-term protective order  had
not  been  violated after it was modified on October 3, 2007  and
found that the parameters established in the long-term protective
order were working.
          The  long-term protective order currently restricts the
parties  to  two  ten-minute telephone calls per week,  prohibits
Robert  from contacting Tracys parents, and limits email  contact
to  two days per week (although Tracy is permitted to send Robert
unlimited  photographs and videos of their daughter).   As  Tracy
contends, these communication limitations could make it difficult
to  make decisions regarding their daughter, especially given the
parties  history of animosity.  But, as the trial court explained
to  the parties, joint legal custody means that the parties  need
to  discuss major life decisions for [their daughter] and that it
does  not mean day to day decisions for [their daughter] have  to
be  discussed.  The trial court implicitly found that the parties
could  cooperate well enough to make these major decisions within
the  constraints  of the long-term protective order.   The  trial
court was in the best position to make this determination,21  and
its implied finding was not clearly erroneous.
     D.   Whether It Was Error for the Trial Court Not To Further
          Reduce  Its Findings of Fact and Conclusions of Law  to
          Writing
          
          Tracy  contends  that  the trial  courts  findings  and
conclusions  are  inadequate as matter of law because  the  court
issued  no  written  findings  regarding  some  relevant  custody
factors and because some of its verbal orders were confusing  and
conflicted  with  written  orders.  The court  entered  extensive
written  findings  and  conclusions and  a  written  custody  and
visitation  plan.   It  also  entered  two  extensive  clarifying
written orders on reconsideration and made oral findings.
          Trial courts are not required to state all findings  in
their  written orders so as long as the basis for their decisions
is  clear from the record and thus susceptible to review.22   The
trial courts findings were sufficiently clear that we are able to
review  them.  And, even though both parties appear to have  been
confused  to  some extent about the courts findings  and  orders,
they had several opportunities to ask the court for explanations.
Also, the trial court gave Tracy, who was by then represented, an
opportunity to submit a written draft custody order to  eliminate
any  confusion.   She  did not do so.  We  therefore  decline  to
remand  for  issuance  of  a  written order  containing  all  the
requirements and terms of the custody arrangement.
     E.   Whether  It Was Error Not To Address How the Visitation
          Schedule Will Change if Tracy Leaves Alaska
          
          Tracy  argues  that it was not in their daughters  best
interests  for  the  trial  court to  fail  to  address  how  the
visitation schedule would change if the Air Force transfers Tracy
out of Alaska.  Tracy did not raise this argument at trial or  in
her  first  or second motions for reconsideration.  Any  possible
error was not sufficiently obvious or likely enough to result  in
injustice  to  be  plain  error.23   Furthermore,  if  Tracy   is
transferred,  and  she  and  Robert are  unable  to  agree  to  a
visitation  schedule, either party can move for  modification  of
the custody order based on a change in circumstances.24  The trial
court  did  not  abuse its discretion by failing  to  specify  in
advance what the visitation schedule will be if Tracy moves.
V.   CONCLUSION
          We  AFFIRM  in  part, VACATE in part,  and  REMAND  for
further proceedings in accordance with this opinion.
_______________________________
     1     AS 25.24.150(g) provides in pertinent part: There is a
rebuttable  presumption  that  a parent  who  has  a  history  of
perpetrating domestic violence against the other parent . . . may
not  be awarded sole legal custody, sole physical custody,  joint
legal custody, or joint physical custody of a child.

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

     3     Id. (citing Elton H. v. Naomi R., 119 P.3d 969, 973-74
(Alaska 2005)).

     4     Id.  (internal quotation marks omitted) (quoting Elton
H., 119 P.3d at 973).

     5    Id.

     6    Id.

     7    See Puddicombe v. Dreka, 167 P.3d 73, 77 (Alaska 2007).

     8    AS 25.24.150(h).

     9    Id.

     10    At oral argument before us Robert indicated that he had
made   substantial  changes  in  his  life.   These   and   other
circumstances  might  be relevant to a claim  that  he  has  been
rehabilitated.

     11     AS  11.56.740(a)(1) provides in part:  (a)  A  person
commits  the crime of violating a protective order if the  person
is  subject  to a protective order (1) issued or filed  under  AS
18.66  and containing a provision listed in AS 18.66.100(c)(1)(7)
and  knowingly commits or attempts to commit an act with reckless
disregard  that the act violates or would violate a provision  of
the protective order.

          AS  18.66.100(c)  provides in part:  (c)  A  protective
order  under  this section may . . . (2) prohibit the  respondent
from telephoning, contacting, or otherwise communicating directly
or indirectly with the petitioner.

     12     Tracy  did not specifically argue in her motions  for
reconsideration  that Roberts alleged long-term protective  order
violations  amounted to domestic violence.  Her first motion  for
reconsideration  asserted  that the  record  contains  sufficient
evidence that Robert had a history of domestic violence  but  did
not  specifically mention long-term protective order  violations.
Her second motion for reconsideration listed alleged evidence  of
Roberts  violent history, but did not mention any  violations  of
the long-term protective order.

          We  do not consider claims raised for the first time on
appeal,  absent plain error.  Mellard v. Mellard, 168  P.3d  483,
489  (Alaska  2007).  Plain error occurs when an obvious  mistake
has  been made which creates a high likelihood that injustice has
resulted.   Katz  v.  Murphy, 165 P.3d  649,  662  (Alaska  2007)
(internal quotation marks omitted) (quoting D.J. v. P.C., 36 P.3d
663,  668  (Alaska 2001)).  Failing to consider  Roberts  alleged
long-term  protective order violations in determining whether  AS
25.24.150(g)  applied creates a high likelihood of injustice  and
was sufficiently obvious to be plain error.

     13    AS 11.81.900(56) defines serious physical injury as

               (A)   physical injury caused by  an  act
          performed under circumstances that  create  a
          substantial risk of death; or
               (B)  physical injury that causes serious
          and   protracted  disfigurement,   protracted
          impairment  of  health,  protracted  loss  or
          impairment  of the function of a body  member
          or  organ,  or  that unlawfully terminates  a
          pregnancy.
          
     14     Tracy  also  argues  that a  broader,  less  rigorous
definition  is  appropriate because domestic violence  can  occur
under  Title  25  even  if the elements of a  Title  11  criminal
offense  have not been met.  She notes that if a parent  attempts
to  commit  a  Title 11 offense against a person, it is  domestic
violence under Title 25.

     15     Tracy  also  argues  that [t]he  extent  of  domestic
violence  between the parties and the appropriate legal framework
to  be  applied was squarely in dispute and it was error for  the
trial court not to address the issue in its findings so that  its
decision  could  be  meaningfully reviewed by  this  court.   The
contention that the courts findings did not address the issue  is
without  merit.  The trial court addressed the issue of  domestic
violence  in its findings when it denied Tracys first motion  for
reconsideration.  The court explicitly found that the April  2007
assault  did not cause serious physical injury, that  the  water-
throwing incident was not a second incident of domestic violence,
and that Robert credibly denied allegations that he had assaulted
a former wife.

     16    Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987).

     17     If  Robert  had  a  history of perpetrating  domestic
violence under AS 25.24.150(g), unsupervised visitation would not
be  permitted  unless  he established by a preponderance  of  the
evidence  that  he  had  completed a  substance  abuse  treatment
program, he was not abusing drugs or alcohol, he did not  pose  a
danger  of harm to the child, and unsupervised visitation was  in
the childs best interests.  AS 25.24.150(j).

     18     Tracy did not make this precise argument in her first
or second motion for reconsideration.  She there linked her self-
executing change-of-visitation argument to AS 25.24.150(g).   But
she  preserved  her core factual and legal contentions  that  the
change  required  no  further  court  action  and  no  proof   of
compliance, and erroneously put the burden of proof on Tracy.

     19     Thomas v. Thomas, 171 P.3d 98, 102 (Alaska 2007)  (We
give  the  superior  court broad discretion to determine  custody
awards in a divorce proceeding so long as the determination is in
a childs best interests.).

     20    See McClain v. McClain, 716 P.2d 381, 386 (Alaska 1986)
(holding  that  cooperation between parents is essential  if  the
arrangement  is  to be in the best interests of the  child);  see
also Farrell v. Farrell, 819 P.2d 896, 899 (Alaska 1991) (stating
that joint legal custody is only appropriate when the parents can
cooperate and communicate in the childs best interest).

     21     See  Millette v. Millette, 177 P.3d 258, 264  (Alaska
2008)  (holding that superior court was in best position to  make
factual  determination because it required assessing  credibility
and  each  partys testimony); Adams v. Adams, 131 P.3d  464,  467
(Alaska  2006)  (deferring  to superior  courts  factual  finding
because the superior court was in the best position to assess the
demeanor and credibility of all the witnesses).

     22    Duffus v. Duffus, 932 P.2d 777, 779 (Alaska 1997).

     23     See   Mellard v. Mellard, 168 P.3d 483,  489  (Alaska
2007); Katz v. Murphy, 165 P.3d 649, 662 (Alaska 2007).

     24     Chesser-Witmer v. Chesser, 117 P.3d 711, 717  (Alaska
2005) (An award of child custody or visitation may be modified if
the court determines that: (1) a change in circumstances requires
the  modification of the award and (2) the modification is in the
best  interests  of the child. . . . Such a change  exists  as  a
matter  of law when a custodial parent moves out of state.   This
rule includes custodial parents who have joint custody. (internal
quotation  marks  omitted) (quoting AS 25.20.100(c),  and  citing
Barrett v. Alguire, 35 P.3d 1, 5-6 (Alaska 2001)).

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