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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
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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