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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Osterkamp v. Stiles (6/25/2010) sp-6481
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 email@example.com. THE SUPREME COURT OF THE STATE OF ALASKA
|KENNETH M. OSTERKAMP,||)|
|) Supreme Court Nos. S- 13297/13317|
|) Superior Court No. 3AN-07- 06424 CI|
|) O P I N I O N|
|) No. 6481 June 25, 2010|
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Jack Smith, Judge. Appearances: Mary A. Gilson and Allison E. Mendel, Mendel & Associates, Anchorage, for Appellant/Cross-Appellee. Robert C. Erwin and Roberta C. Erwin, Robert C. Erwin, LLC, Anchorage, for Appellee/Cross-Appellant. Before: Carpeneti, Chief Justice, Fabe, Winfree, and Christen, Justices. [Eastaugh, Justice, not participating.] CHRISTEN, Justice. I. INTRODUCTION Kenneth Osterkamp appeals the award of sole physical and legal custody of Simon Stiles1 to his adoptive mother, Kattaryna Stiles. Ken and Kattaryna were Simons foster parents from one week after Simon was born until Kattaryna adopted Simon when he was sixteen months old. Ken and Kattaryna continued to raise Simon together as domestic partners until Simon was twenty months old, at which point Kattaryna separated from Ken. After Kattaryna began limiting Kens visitation, he filed a complaint for custody and visitation. The superior court denied Ken custody, concluding that he did not meet the substantive requirements for a third party seeking custody over the objection of the legal parent. It concluded that between the time Kattaryna adopted Simon and the time Ken filed suit, Ken had not established psychological parent status. The superior court did not reach the question of whether Ken met the substantive requirements for a third party seeking visitation. We affirm the superior courts award of legal and physical custody to Kattaryna because we agree that Ken did not establish by clear and convincing evidence that awarding sole custody to Kattaryna would be clearly detrimental to Simon; it was not clearly erroneous for the superior court to conclude that at the time Ken filed his complaint he was not Simons psychological parent. Given the already protracted length of these proceedings, we reach the merits of the visitation issue and conclude that Ken did not prove by clear and convincing evidence that it would be in Simons best interests for the court to order visitation over Kattarynas objection. Ken also appeals the superior courts credit of loan payments to Kattaryna, the award of attorneys fees to Kattaryna, and the issuance of a writ of assistance without proper notice. Kattaryna cross-appeals the superior courts order requiring her to repay money she received from Kens parents. We affirm the superior courts rulings on property issues and attorneys fees, but conclude that it was error to issue a writ of assistance without providing both parties with proper notice and an opportunity to be heard. II. FACTS AND PROCEEDINGS A. Custody And Visitation Kenneth Osterkamp and Kattaryna Stiles met in the spring of 2002 and became romantically involved shortly thereafter. They began living together, first in Kattarynas apartment and then in a condominium they purchased together in 2003. They bought a home together in late 2004 where they lived until separating in March 2007. Ken and Kattaryna never married, but they considered themselves to be domestic partners. In 2004 Ken and Kattaryna became foster parents together, successively serving as foster parents to several infants. On September 1, 2005, the Office of Childrens Services (OCS) placed Simon with Kattaryna and Ken. Simon was born on August 25, 2005 and is an Indian child under the Indian Child Welfare Act (ICWA).2 Ken and Kattaryna began taking steps to adopt Simon in early 2006, even as they began to experience difficulties in their relationship. They dispute whether they decided to adopt Simon as a couple, although a home study for joint adoption was conducted in spring 2006. Kattaryna claims she always planned to adopt Simon on her own but a social worker advised putting Kens name on the home study in case they later decided to adopt together. Ken claims that the plan was always for joint adoption and he only agreed to remove his name from the adoption petition after Kattaryna insisted that they wait and see if their relationship improved before including his name. Ken and Kattaryna agreed that if Ken ultimately did not adopt Simon, he would be like a beloved uncle and continue to have a role in Simons life. Once it was decided that, at least initially, Kattaryna would adopt Simon by herself, a second adoption study was completed taking these changed circumstances into account. Both adoption studies recommended that the adoption proceed. On December 28, 2006, the court held an adoption hearing and issued an adoption decree.3 Simon was sixteen months old and had spent all but one week of his life living with Ken and Kattaryna. Ken attended the hearing and did not raise any objections or concerns over his name not appearing on the adoption decree. Nor did he request to reserve any post-adoption rights. After the adoption, Ken, Kattaryna, and Simon continued to live together as a family unit for three months. Kattaryna separated from Ken in March 2007 after a heated argument, but she testified that she had been planning to leave for many months. The parties initially agreed Ken would have visitation with Simon but Kattaryna began limiting visitation to once every two or three weeks, with no overnights. Kattaryna also forbade Simons social worker and daycare providers from referring to Ken as dad or father, and forbade Ken from doing the same. In April 2007, Ken filed a complaint for joint legal and physical custody. He claimed that as Simons psychological father and as someone who had acted in loco parentis for Simon, he had a right to joint custody. Ken also sought an order compelling Kattaryna to consent to his joint adoption of Simon. The superior court ordered interim visitation while the complaint for custody was pending, but Kattaryna retained sole legal and primary physical custody. In response to a motion filed by Ken, the court appointed a custody investigator in June 2007. In March 2008, eleven months after filing his initial complaint, Ken filed a motion in limine to determine his standing to seek custody or visitation. He asked the court to determine before trial whether he was a psychological parent to Simon. The court partially granted the motion in April 2008, allowing Ken to proceed to trial but deferring until trial the question of whether Ken was Simons psychological parent. The custody investigator filed a report in June 2008 explaining that it is guesswork to determine whether a person is a psychological parent to a toddler. But because Ken and Kattaryna were Simons only caregivers during the first nineteen months of his life, the investigator concluded one can be fairly certain that Simon had more or less equal emotional attachments to each of them. Similarly, a psychological evaluation completed at the request of the custody investigator observed that Simon had positive interactions with both Ken and Kattaryna and that both Ken and Kattaryna demonstrated parental love and affection towards Simon. Ken and Kattaryna experienced great difficulty cooperating with each other to implement the courts visitation schedule. Kattaryna repeatedly expressed to both the custody investigator and psychological evaluator that she no longer wanted Ken in Simons life. This led to conflict, sometimes in front of Simon. A bench trial was held in early July 2008. The court entered an oral ruling on August 22, 2008 awarding Kattaryna sole legal and physical custody of Simon. Although the superior court found Ken had established psychological parent status by the time of trial, the court ruled that the period from the adoption in December 2006 until the custody suit in April 2007 was the dispositive time period for purposes of assessing Simons bond with Ken. The court concluded that Ken was not Simons psychological parent as of the time the parties separated and Ken filed his complaint. The court also concluded that Ken had not shown by clear and convincing evidence that it would be clearly detrimental to Simon to remain in Kattarynas custody. The court was silent on Kens claim for visitation rights. After the court read its oral ruling into the record, the court, at the suggestion of Kattarynas attorney, discussed and issued a writ of assistance to Kattaryna to obtain physical custody of Simon. Because the court had failed to send notice to the parties informing them when the ruling would be read, Ken and his attorney were not present during the discussion or issuance of the writ of assistance; Kattarynas attorney was present because she noticed the proceeding scheduled on CourtView.4 In October 2008 Ken unsuccessfully requested visitation pending appeal. He has had no contact with Simon since August 2008. Ken appeals the superior courts denial of custody as well as its failure to determine if he met the substantive requirements for visitation. He also appeals its issuance of a writ of assistance without proper notice. B. Property Issues In 2004 Kens parents gave Kattaryna and Ken $44,000 to finance the purchase of their home.5 Kens parents issued gift letters of $22,000 each to Kattaryna and Ken. These letters purported to require no repayment. Nonetheless, Kattaryna made monthly payments to Kens parents from October 2005 until February 2007, writing home loan on each check. Ken and his mother testified that the expectation was for both $22,000 payments to be paid back, but with no interest and without a deadline for repayment. Kattaryna argued the $22,000 payment was a gift and that her monthly payments were made out of moral obligation only. In its August 2008 oral ruling, the court found that Kens parents loaned $44,000 to the parties. The court credited Kattaryna $4,200 for payments she had made on her loan and ordered her to repay the remaining $17,800. After accounting for Kattarynas loan payments, Kens home improvements, and the amount owing on the mortgage, the court found Kattarynas share of the home equity to be $50,132, and Kens share to be $78,883.75. The court ordered that the parties refinance the home to remove Kattaryna from the mortgage obligation, and that they equally share the cost of refinancing. Ken appeals the superior court order crediting only Kattaryna for payments she made to Kens parents. Kattaryna cross- appeals the superior courts order requiring that she repay a loan she received from Kens parents. C. Attorneys Fees In October 2006 Kattaryna successfully moved for interim attorneys fees under AS 25.24.140(a)(1), which permits interim fee awards in divorce or dissolution actions. At trial, the court found the interim fee award continued to be justified because Ken was living in the parties home and had a greater income. Ken appeals the superior courts award of attorneys fees to Kattaryna. III. STANDARD OF REVIEW The superior court has broad discretion in custody awards.6 We will reverse a superior courts custody and visitation determination only if the superior court has abused its discretion or if its controlling findings of fact are clearly erroneous.7 The superior court abuses its discretion when it consider[s] improper factors in making its custody determination, fail[s] to consider statutorily mandated factors, or assign[s] disproportionate weight to particular factors while ignoring others.8 We review factual findings, including determinations of psychological parent status, for clear error.9 A factual finding is clearly erroneous when a review of the record leaves us with the definite impression that a mistake has been made.10 Whether factual findings are sufficient to support an award of custody to a third party is a legal issue to which we apply our independent judgment.11 Likewise, [w]hether the court applied the correct standard in a custody determination is a question of law we review de novo.12 Interim attorneys fee awards in divorce-like proceedings are reviewed for abuse of discretion.13 We will not reverse such an award unless it is arbitrary, capricious, manifestly unreasonable, or stems from an improper motive.14 IV. DISCUSSION A. The Standing Issue Prior to trial, Ken filed a Motion in Limine to Determine Plaintiffs Standing. He asked the court to determine, before trial, whether he was the psychological parent of [Simon]. The superior court did not decide prior to trial whether Ken was Simons psychological parent; the court ordered that Ken would have to prove his case at trial. Because Kattaryna did not challenge Kens standing to bring a claim for custody or visitation in her Partial Opposition to Motion in Limine to Determine Plaintiffs Standing she asked only that the court rule that former foster parents like Ken could not establish psychological parent status the superior court never expressly ruled on the issue of standing. But on cross-appeal before this court, Kattaryna argues that Ken does not have standing to seek post-adoption custody or visitation because any rights he may have had based on his relationship with Simon were terminated when Kattaryna adopted Simon. In Buness v. Gillen we considered whether a stepparent had standing to seek custody over the objection of the biological parent.15 We held that a non-parent who has a significant connection with a child has standing to assert a claim for custody.16 In Evans v. McTaggart we question[ed] whether the significant connection test was intended to be merely another way of expressing psychological parent or in loco parentis status, but we declined to flesh out the meaning of the significant connection test for standing because the biological father in Evans had not objected to the maternal grandparents intervention or custody motion on standing grounds.17 Here, because Kattaryna did not make a specific negative averment before the superior court that she wishe[d] to raise an issue as to the capacity of [Ken] to sue,18 Kattaryna is precluded from raising an objection to standing on appeal.19 B. The Superior Court Did Not Err By Concluding That Ken Failed To Establish By Clear And Convincing Evidence That Awarding Sole Custody To Kattaryna Would Be Clearly Detrimental To Simon. Ken concedes that under AS 25.23.130(a)(2) Kattarynas adoption of Simon resulted in the legal creation of a parent- child relationship between Simon and Kattaryna as if she were Simons biological parent.20 We agree; once the adoption decree was finalized on December 28, 2006, Kattaryna became Simons sole legal parent. Kens legal relationship to Simon has always been that of a third party, both before and after Kattarynas adoption of Simon. The question here is whether Ken, as a third party, may obtain custody or visitation against the wishes of Kattaryna, Simons legal parent. We previously discussed questions of third party custody and visitation in Evans v. McTaggart.21 Evans involved a claim by a childs maternal grandparents for custody over the objections of the childs biological parents.22 The grandparents also sought visitation with their grandchilds half-sibling who was not biologically related to them.23 The Evans trial court did not find the grandparents to be the psychological parents of either child.24 Addressing the custody issue in Evans, we stated that: in order to overcome the parental preference [in an initial custody contest between a parent and a non-parent] a non-parent must show by clear and convincing evidence that the parent is unfit or that the welfare of the child requires the child to be in the custody of the non-parent.25 Ken argues that the superior court erred by concluding that he did not meet his evidentiary burden for a third party seeking shared custody. The basis of Kens custody argument is that the welfare of the child requires that he continue to have contact with Simon not that Kattaryna is an unfit parent. Our inquiry therefore focuses on whether Ken was able to meet his evidentiary burden to show that the welfare of the child requires the child to be in the custody of the non-parent.26 Kattarynas fitness as a parent is not in dispute. We explained the welfare of the child component of this analysis in Evans, where we decided that to be awarded custody a non-parent must show that the child would suffer clear detriment if placed in the custody of the parent.27 We clarify that this analysis is not limited to examining the childs relationship with the legal parent; courts may take into account the relationship between a child and a third party in determining whether awarding custody to the legal parent and denying custody to the third party would result in clear detriment to the child.28 The clear detriment Ken alleges is the harm [Simon] will experience if his relationship with a psychological parent is ended. Ken cites to our decisions in Buness v. Gillen and Todd v. Todd in support of this argument. In Buness, we noted that severing the bond between the psychological parent and the child may well be clearly detrimental to the childs welfare.29 In Todd v. Todd, we acknowledged that when a childs strongest psychological bonding is with third parties, it would be detrimental to [the child] to destroy those bonds.30 To determine whether Ken met his evidentiary burden to show clear detriment, we first review the superior courts determination that Ken was not Simons psychological parent at the time he filed suit for custody and visitation. Because Kens clear detriment argument rests on the assertion that he has at all relevant times been Simons psychological parent, his argument ends where it begins unless he can demonstrate he was Simons psychological parent at the relevant time. Second, we review Kens clear detriment argument in light of our decisions in Buness and Todd. 1. The superior court did not err by concluding that Ken was not Simons psychological parent for purposes of this custody dispute. We have explained that a psychological parent is: one who, on a day-to-day basis, through interaction, companionship, interplay, and mutuality, fulfills the childs psychological needs for an adult. This adult becomes an essential focus of the childs life, for he is not only the source of the fulfillment of the childs physical needs, but also the source of his emotional and psychological needs.31 The superior court ruled that Ken did not demonstrate he was Simons psychological parent during the relevant time period for this custody action. And the court ruled that the relevant time period was from December 28, 2006 when Kattaryna adopted Simon to April 12, 2007 when Ken filed suit for custody.32 Ken disputes the superior courts decision that these three and a half months constitute the relevant time period for assessing his status as Simons psychological parent. He argues that the superior court should have made its determination based on all the evidence from the moment Ken became Simons foster parent in September 2005 until trial in July 2008. Ken further argues that even if the superior court was correct to consider only the interval between the entry of the adoption decree and the filing of the complaint in this action, it was still clearly erroneous to conclude that Ken had not established psychological parent status by the time he filed his complaint for custody. Kattaryna counters that Ken cannot be Simons psychological parent because he is a former foster parent whose legal rights were extinguished by his failure to join in Kattarynas adoption of Simon. The issue of what time period the court should look to in determining psychological parent status is particularly significant in this case. The superior court found there was insufficient evidence that Ken had established psychological parent status as of the date Ken filed suit for custody, but the superior courts oral findings included the statement that it was unequivocal that as of the time of trial, July 2008, [Ken] was a psychological parent to [Simon].33 We consider separately the time before Kattaryna adopted Simon and the time after Ken filed his complaint for custody. a. The superior court correctly began its analysis at the moment Kattaryna became Simons sole legal parent. The superior court concluded that no rights accrued to [Ken] during the period of his foster parenting . . . such that the rights of a psychological parent would have developed, observing that Ken voluntarily allowed [Kattaryna] to adopt [Simon] in December of 2006. Ken argues that the superior court erred as a matter of law by not considering the entire time Ken served as Simons foster parent when it decided whether Ken met his burden of showing psychological parent status.34 We disagree. The purpose of an adoption decree is to vest all legal parental rights with the adoptive parent or parents, to the exclusion of all others.35 The same policy reasons that motivate AS 25.23.130 militate against recognizing a former foster parents claims for custody or visitation against the wishes of the adoptive parent based upon psychological bonds established during the period of foster care. Just as the relationship between adoptive parents and adoptive children should be protected from post-adoption disruptions by biological parents who have surrendered children for adoption, it must also be protected against post-adoption disruptions from foster parents or other third parties, particularly when these individuals did not oppose the adoption or seek to reserve any rights under the adoption decree. Allowing Ken to establish psychological parent status based upon time he served as a foster parent is also inconsistent with the basic premise of our foster care and adoption programs. Discussing the related concept of de facto parent status, the American Law Institute has cautioned, [r]elationships with foster parents are . . . generally excluded . . . because inclusion of foster parents would undermine the integrity of a state-run system designed to provide temporary, rather than indefinite, care for children.36 Ascertaining whether a foster parent has attained psychological parent status also presents special difficulties. As we stated in Carter v. Brodrick, the psychological parent is one who love[s], value[s], appreciate[s], and view[s] as an essential person the child for whom he or she is caring.37 A foster parent serves a vital but inherently temporary role in a childs life. The ultimate goal in foster care is for the child to either be returned to the biological parents in appropriate circumstances or adopted, either by the foster parents or by another third party. The temporary nature of foster care along with the compensation for services associated with it make it more difficult to ascertain whether a foster parent has become a psychological parent or is serving the childs needs in a different capacity. Given these considerations, we hold that the superior court was correct not to consider the time prior to the entry of the adoption decree for purposes of determining whether Ken was Simons psychological parent. Kattaryna is correct that the time Ken served as Simons foster parent may not be considered for purposes of establishing psychological parent status, but she is incorrect that Ken is barred from subsequently establishing such status. The adoption decree gave Ken a clean slate upon which to establish psychological parent status. While it made Ken a stranger to Simon in the eyes of the law as of the moment of the adoption, in this case that moment was short-lived.38 Kattaryna and Simon continued living together with Ken after the adoption and the superior court was obliged to evaluate the nature and quality of the relationship that Ken developed with Simon following the entry of the decree. At least initially, Kattaryna promoted and fostered a relationship between Ken and Simon after the adoption. The custody investigator reported that Kattaryna, Simon, and Ken still lived together as a family unit after the adoption, a fact the superior court found significant. The superior court also pointed to a new will Kattaryna drafted in January 2007 as evidence that after the adoption she envisioned Ken being in [Simons] life. The will identified Ken (or Kens relatives if Ken did not survive Kattaryna) as guardian and conservator of Simon, and left Kattarynas interest in the parties house to Ken. Given Kens continuing relationship with Simon, encouraged or at least accepted by Kattaryna, the difficult question before the superior court was whether or not Ken established psychological parent status in the period subsequent to the adoption. b. The superior court correctly ended its analysis at the point when Ken filed his complaint for custody. The superior court concluded that the end of the relevant period for determining psychological parent status was when Ken filed his complaint for custody. Ken argues that the superior court erred as a matter of law by not considering any facts after Ken filed his complaint. We agree with the superior court. There are important policy reasons why the parental status of parties to custody and visitation cases should be fixed at the time they file suit: a third party should not be able to establish psychological parent status against the wishes of the legal parent as a result of court-ordered interim visitation. Interim visitation is meant to help maintain and promote already existing psychological parent-child bonds; it should not be converted into a tool for establishing such bonds. If courts considered the interim period, litigants in Kattarynas position would have an incentive to withhold or oppose pre-trial visitation, a potentially harmful result to a child genuinely bonded to a third party psychological parent. Conversely, litigants in Kens position would have an incentive to delay resolution of the case in the hope a psychological parent connection could be established by exercising visitation during the interim period. The latter result could also be harmful to the child, in addition to being contrary to the wishes of the legal parent. For these reasons, we hold that in third party custody or visitation actions, the relevant point in time for establishing psychological parent status is the time when a complaint for custody or visitation is filed.39 c. It was not clearly erroneous for the superior court to decide that Ken failed to establish psychological parent status during the relevant time period. The superior court did not find [Ken] to be the psychological parent of [Simon], between the time of the adoption on December 28, 2006 and the date [Ken] filed the Petition for Custody on April 12, 2007. The court based its conclusion on three primary considerations. First, it concluded that the time period between the adoption and Kens custody complaint about three and a half months was simply too short to establish psychological parent status. Second, it pointed to Simons very young age at the time of separation between nineteen and twenty months as a factor weighing against establishing psychological parent status. Finally, the court emphasized the importance of the fact that Ken voluntarily agreed to let Kattaryna adopt Simon alone just three and a half months before filing his complaint for joint custody. We review a finding of psychological parent status for clear error.40 The superior court did not clearly err when it found that three to four months is not long enough to establish psychological parent status, particularly given Simons young age.41 As the custody investigator stated, until a child is old enough to say shes my mom and hes my dad, it is guesswork to figure out who [the child] views as his psychological parent(s). Furthermore, even though there is disputed evidence in the record suggesting it was Kens intention to eventually adopt Simon, the superior court did not err when it considered Kens decision not to adopt Simon when he may have had the chance to do so as weighing against his claim. We do not find the superior courts decision that Ken failed to establish psychological parent status at the time he filed suit for custody to be clearly erroneous. We do not accept Kens invitation to reconsider whether a psychological parent seeking custody or visitation over the objections of a legal parent should be held to a different substantive standard or evidentiary burden than another third party seeking similar rights. 2. Buness and Todd are distinguishable from this case. Ken argues that Buness v. Gillen42 and Todd v. Todd43 support his argument that it will be clearly detrimental to Simon if his bond with Ken is broken. We do not find either decision to be inconsistent with the superior courts ruling. The third party relationships that were at issue in Buness and Todd are both distinguishable from Kens relationship with Simon. Most prominently, the third party relationships with the children in Buness and Todd were significantly longer than the relationship between Ken and Simon. In Buness, the third party seeking custody had been the childs stepfather and primary care-giver and father figure for ten years.44 In Todd, the childs grandparents sought custody and they had been the childs primary caregivers for about seven years.45 Kens entire relationship with Simon was only twenty months in duration when he filed suit for custody, and only three and a half of those months post-dated the adoption decree. Another important distinction is that the children in Buness and Todd were significantly older than Simon; the third parties in Buness and Todd had raised the children in those cases throughout much of their childhood. In contrast, Simon was still a toddler when Ken filed suit for custody. In light of these considerations, we do not find that the superior court was clearly erroneous in concluding that Ken failed to demonstrate by clear and convincing evidence that it would be clearly detrimental to Simon if Ken was not awarded custody.46 C. Ken Did Not Prove By Clear And Convincing Evidence That It Would Be In Simons Best Interest To Order Visitation Over Kattarynas Objection. The superior court did not rule on Kens request for third party visitation, which was argued by the parties below. Because this case already has a protracted history, because the parties need finality, and because Ken presented his case for visitation to the superior court, we resolve Kens claim for visitation on the merits rather than remand for further proceedings.47 We held in Evans that to obtain visitation over the objection of a legal parent, a third party must show by clear and convincing evidence that visitation is in the childs best interests.48 This heightened burden of proof reflects our long- standing custodial preference for parents over non-parents.49 In Evans, we noted the statement from the plurality in the United States Supreme Courts decision Troxel v. Granville that special weight must be given to a fit parents determination as to the desirability of visitation with third parties.50 We concluded that a presumption of parental fitness to determine what is in a childs best interests could be ensured by requiring that a third party prove by clear and convincing evidence that such visitation is in the best interests of the child.51 The result of establishing this heightened standard, we concluded, was to provide effective protection for a parents choice, except where the choice is plainly contrary to a childs best interests.52 In this case, Kattaryna has repeatedly expressed her preference that Ken no longer have a role in Simons life. She has actively told others that they are forbidden to refer to Ken as Simons father. The psychological evaluator noted in a follow up report prepared shortly before trial that [i]t remains clear, as it was at the time of my original evaluation, that Kattaryna wants Ken out of [Simons] life. This is a difficult case and it is a close question whether it would be in Simons best interests to order visitation with Ken over Kattarynas fervent objections. On one hand, there is evidence in the record of a close and loving relationship between Simon and Ken as of the time of trial. On the other, both the custody investigator and the psychological evaluator acknowledged Simon could be harmed by continued exposure to the toxic relationship between Ken and Kattaryna.53 Ultimately, Kens inability to establish psychological parent status once again undercuts his chief argument that removing Ken from Simons life would be detrimental to Simon. We also disagree with Ken regarding the weight to be given to Kattarynas unwillingness to foster his relationship with Simon; special consideration must be given to a fit parents determination regarding the desirability of visitation with third parties.54 Having considered the evidence presented at trial, we find that Ken did not meet his burden to prove by clear and convincing evidence that Kattarynas preference that he no longer have a relationship with Simon is plainly contrary to the childs best interests. D. The Superior Court Did Not Err By Requiring Kattaryna To Repay A Loan From Kens Parents Or By Not Crediting Her Loan Payments To Both Parties. On cross-appeal, Kattaryna argues the superior court erred in finding that Kens parents loaned $22,000 to Kattaryna and $22,000 to Ken. She argues the parties called and treated the payments gifts. Ken disagrees and also argues the court erred by not crediting Kattarynas loan payments to both parties. There is a rebuttable presumption that transfers of funds between close relatives are not actual debts.55 We review the superior courts characterization of such transfers of funds as loans or gifts for clear error.56 There is conflicting evidence as to whether the transfer of funds from Kens parents were loans or simply gifts. Kens parents issued gift letters stating [n]o repayment of this gift is expected or implied either in the form of cash or by future services of the recipient, and Kattaryna testified she made payments out of a moral obligation only. Kens mother testified the payments were interest-free and without a specific payment term, but that the payments were loans, and that the gift part of the transaction was making the loans interest-free and not requiring a specific payment term or schedule. She also testified they made similar loans to Kens siblings, and the record contains documents showing payments made on those loans. Kattaryna made sixteen payments to Kens parents, generally in installments of $250, and wrote home loan on her checks. Ken testified the payments from his parents were loans and that Kattarynas installments were payments made on behalf of both of them because he was paying the mortgage. The presumption that transfers of funds between close relatives are not actual debts is rebutted in this case by weightier evidence that the money from Kens parents was intended to be repaid. We conclude that the court did not clearly err in finding the payments from Kens parents were legally enforceable loans.57 We also conclude the superior court did not clearly err by crediting Kattaryna for the loan payments she made, and by not crediting Ken for the mortgage payments.58 [P]roperty accumulated during cohabitation should be divided by determining the express or implied intent of the parties.59 Although Ken testified that Kattaryna made payments on the parents loans for both of them because he was paying the mortgage, the record shows the loans were made to Kattaryna and Ken individually. The record also supports the superior courts factual finding that the parties intended Ken to pay the mortgage, and that Kattaryna would pay utilities and incidentals because Ken had a higher income. The courts property division was in accord with the parties intentions, as reflected in the record. E. The Superior Court Did Not Err By Granting Kattaryna Interim Attorneys Fees. Ken argues on appeal that the superior court abused its discretion when it ordered him to pay Kattaryna interim attorneys fees. He argues the court made no findings to support this decision and claims that the fact he has lived in the house throughout the litigation does not support awarding Kattaryna interim attorneys fees. The court reduced its original award of interim fees from $10,000 to $5,000, finding the award justified because Ken had a greater income and occupied the home the parties largest and only significant equity throughout the action. [I]n actions between unmarried couples that resemble divorce proceedings the rules governing the award of attorneys fees in divorce cases will be applied.60 In such cases, an award of costs and fees is based on the relative economic situations and earning powers of the parties.61 The purpose of such awards is to ensure the parties can litigate on a fairly equal plane.62 We review an interim attorneys fee award in divorce-like proceedings for abuse of discretion and will not reverse the award unless it is arbitrary, capricious, manifestly unreasonable, or stems from an improper motive.63 Here, the court did not abuse its discretion in awarding Kattaryna $5,000 in fees. Contrary to Kens assertion, the court made findings and its findings were relevant to the determination. It considered the parties respective incomes and other sources of equity, including Kens continued possession of the house, the parties sole significant asset. The record supports these findings. The courts findings were not clearly erroneous, it considered appropriate factors, and the award was not arbitrary, capricious, or manifestly unjust. F. The Superior Court Should Have Provided Notice To Ken Before Issuing A Writ Of Assistance To Kattaryna. Ken contends the superior courts communication with opposing counsel following its oral ruling and its issuance of a writ of assistance outside of his presence was error. The purpose of the courts proceedings on August 22, 2008 was to issue the courts oral ruling on record. While no notice was sent to counsel, the date for the decision on the record appeared on the CourtView calendar, which both parties could access. Kattarynas counsel saw the date on CourtView and attended. Ken and his counsel did not have notice and they were not present. There is no evidence that the court intended to address the issue of a writ of assistance at these proceedings this issue came up when Kattarynas counsel asked if the court was going to issue an order for the return of Simon. But the court ended up granting Kattarynas request for a writ of assistance without providing an opportunity for Ken to be heard. Ken is correct that the writ of assistance should not have been issued under these circumstances. As Ken notes, however, the damage has been done. Ken did not request additional relief. IV. CONCLUSION For the reasons stated above, with the exception of the courts issuance of a writ of assistance, the decisions of the superior court are AFFIRMED. _______________________________ 1 This opinion uses a pseudonym to protect the minors privacy. 2 25 U.S.C. 1903(4) (2006). 3 Simons biological mothers parental rights were terminated and his biological father voluntarily relinquished his parental rights. The tribes with which Simon is affiliated received notice of the adoption hearing and filed no objection; the court found good cause to deviate from ICWAs placement preferences. 4 CourtView is the trial courts electronic, online docketing and calendaring system. 5 The superior court observed that the total loan amount was actually $48,000, but found that only $44,000 was related to the home. Because it did not find that the remaining $4,000 was related to the home, it did not include this amount in its calculations. Neither party appeals this decision. 6 In re Adoption of Missy M., 133 P.3d 645, 648 (Alaska 2006) (quoting Elton H. v. Naomi R., 119 P.3d 969, 973 (Alaska 2005)) (internal quotation marks omitted). 7 R.I. v. C.C., 9 P.3d 274, 277 (Alaska 2000) (internal citations omitted); see also Skinner v. Hagberg, 183 P.3d 486, 489 (Alaska 2008) (reviewing visitation orders for abuse of discretion) (citing Lone Wolf v. Lone Wolf, 741 P.2d 1187, 1190 (Alaska 1987)). 8 In re Missy M., 133 P.3d at 648 (quoting Fardig v. Fardig, 56 P.3d 9, 11 (Alaska 2002)). 9 Kinnard v. Kinnard, 43 P.3d 150, 153 (Alaska 2002). 10 In re Missy M., 133 P.3d at 648. 11 J.W. v. R.J., 951 P.2d 1206, 1209 (Alaska 1998) (citing R.R. v. State, 919 P.2d 754, 755 n.1 (Alaska 1996)), overruled on other grounds by Evans v. McTaggart, 88 P.3d 1078, 1085 n.34 (Alaska 2004). 12 Elton H. v. Naomi R., 119 P.3d 969, 973 (Alaska 2005) (quoting Moeller-Prokosch v. Prokosch, 27 P.3d 314, 316 (Alaska 2001)). 13 See Koller v. Reft, 71 P.3d 800, 808 (Alaska 2003). 14 See id. (quoting Zimin v. Zimin, 837 P.2d 118, 124 (Alaska 1992)) (internal quotation marks omitted). 15 781 P.2d 985, 986 (Alaska 1989), overruled on other grounds by Evans, 88 P.3d at 1085 n.34 (Alaska 2004). 16 Id. at 988. 17 Evans, 88 P.3d at 1082. We recognize that the statement in Evans questioning the relationship between the significant connection test and psychological parent status caused confusion. To clarify, a third party need not prove psychological parent status in order to have standing to bring a claim for custody or visitation. As we suggested in Evans, establishing psychological parent status is more demanding than the significant connection status that a third party must have in order to seek custody. Id. Significant connection status is a threshold question; it relates to whether a third party has standing to assert a claim for custody or visitation. Buness, 781 P.2d at 988. Psychological parent status does not entitle a third party to custody or visitation, but this status can help a third party prove that it would be clearly detrimental to a child to deny third party custody, or that it would be in the childs best interests to grant visitation to a third party. See, e.g., id. at 989 n.8. 18 Brown v. Music Inc., 359 P.2d 295, 300-01 (Alaska 1961). The failure to raise the issue of capacity to sue below results in a waiver of that defense. Moore v. State, Dept of Natural Res., 992 P.2d 576, 577 n.5 (Alaska 1999); see also Jackson v. Nangle, 677 P.2d 242, 250 n.10 (Alaska 1984); King v. Petroleum Servs. Corp., 536 P.2d 116, 118 (Alaska 1975). 19 Questions of standing should be raised and decided during the initial stages of litigation. Given the emotional burden custody and visitation litigation places on children and litigants, trial courts should resolve issues of standing as early as possible in the pre-trial phase of litigation. 20 In relevant part, AS 25.23.130(a)(2) provides: (a) A final decree of adoption . . . has the following effect . . . (2) to create the relationship of parent and child between petitioner and the adopted person, as if the adopted person were a legitimate blood descendant of the petitioner, for all purposes . . . . 21 88 P.3d 1078, 1079 (Alaska 2004). 22 Id. at 1081. 23 Id. at 1087. 24 Id. at 1082. 25 Id. at 1085. 26 Evans, 88 P.3d at 1085. 27 Id. 28 See J.W. v. R.J., 951 P.2d 1206, 1211 (Alaska 1998) ([T]he court may take the relationship [between a child and a third party] into account, however, in deciding whether awarding custody to the biological parent would be detrimental to the child.), overruled on other grounds by Evans v. McTaggart, 88 P.3d 1078, 1085 n.34 (Alaska 2004). 29 781 P.2d 985, 989 (Alaska 1989). 30 989 P.2d 141, 143 (Alaska 1999). 31 Evans, 88 P.3d at 1082 (quoting Carter v. Brodrick, 644 P.2d 850, 853 n.2 (Alaska 1982)). 32 The superior court made conflicting statements about whether it considered the time of suit or the time of separation to be the relevant point for determining psychological parent status. We conclude that although the superior court treated these events somewhat interchangeably, it ultimately decided that the date Ken filed his complaint for custody was the relevant date for purposes of determining his psychological parent status. 33 The superior courts written findings of fact and conclusions of law only state that (1) the court did not find Ken to be the psychological parent of Simon between the time of adoption and the date he petitioned for custody; and (2) Ken is not the psychological parent of Simon. 34 Because Ken argues psychological parent status to meet the clear detriment requirement in his claim for third party custody, the evidentiary burden he must meet to establish this status is clear and convincing evidence. Evans, 88 P.3d at 1085 (holding that a heightened standard of proof is appropriate in initial custody contests between parents and non-parents, and that the heightened standard should be a clear and convincing evidence standard.). 35 See AS 25.23.130. There is a spousal exception for instances where a stepparent who is married to the natural parent adopts the natural parents child. Id. 36 ALI Principles of the Law of Family Dissolution 2.03 comment c(ii). 37 644 P.2d 850, 853 n.2 (Alaska 1982). 38 See, e.g., In re Adoption of S.K.L.H., 204 P.3d 320, 326 n.23 (Alaska 2009) (AS 25.23.130(a) clearly provides, however harshly, that the final [adoption] decree has the effect of making an adopted child a stranger to the former relatives.) (internal citations omitted). 39 Ken points to our ruling in Evans to support his argument that the superior court should have made its determination on psychological status based on his entire history with Simon up to the time of trial. In Evans, we vacated an award of custody and visitation to the grandparents of two half- brothers, ordering that if on remand the grandparents visitation and custody could not be sustained on previously-admitted evidence, the superior court was to hold an evidentiary hearing to get updated facts. 88 P.3d 1078, 1091 (Alaska 2004). The issue in Evans was not the nature of the grandparents relationship to the children the superior court held they had not established psychological parent status, Id. at 1082 the issue was the ability of the childrens biological parents to meet the childrens physical, emotional and intellectual needs. Id. at 1080. The question of parental fitness or home environment is often an evolving assessment. If a parent has gone from being fit to unfit or the home environment has deteriorated over the course of litigation, a superior court may consider these changed circumstances when determining custody or visitation. 40 Kinnard v. Kinnard, 43 P.3d 150, 153 (Alaska 2002). 41 The American Law Institute standard for establishing de facto parent status requires that a person live with a child for a significant period of time not less than two years. ALI Principles of Family Dissolution 2.03, comment c(iv). We do not establish any minimum length of time for establishing psychological parent status, but we do agree with the ALI that [t]he length of time that constitutes a significant period will depend on many circumstances, including the age of the child, the frequency of contact, and the intensity of the relationship. Id. 42 781 P.2d 985, 989 (Alaska 1989). 43 989 P.2d 141, 145 (Alaska 1999). 44 781 P.2d at 989. 45 989 P.2d at 145. 46 Kens argument that remand is necessary on the issue of clear detriment because it is not possible to discern the basis of the superior courts decision also fails. Because we affirm the superior courts finding that Ken did not establish psychological parent status during the relevant period, and psychological parent status is Kens sole argument for establishing clear detriment, remand is not appropriate. 47 See, e.g., In re Estate of Johnson, 119 P.3d 425, 436 n.43 (Alaska 2005) (Due to the lengthy delays in this case, we are reluctant to remand the case for further proceedings.); State v. Kenaitze Indian Tribe, 83 P.3d 1060, 1071 (Alaska 2004) ([G]iven the long delays in this litigation . . . we are reluctant to remand to the superior court to carry out the same review that we have already conducted. We therefore think it is better in this case for us to consider the merits of whether the regulation is invalid, rather than remand to the superior court, with the potential for further appeals.). 48 Evans v. McTaggart, 88 P.3d 1078, 1089 (Alaska 2004). 49 See, e.g., Turner v. Pannick, 540 P.2d 1051, 1055 (Alaska 1975) (stating that parental custody [is] preferable and only to be refused where clearly detrimental to the child); see also Kinnard v. Kinnard, 43 P.3d 150, 154 (Alaska 2002) (Even in custody disputes between parents and stepparents, the best interests standard is rejected in favor of the Turner parental preference.); J.W. v. R.J., 951 P.2d 1206 (Alaska 1998) (applying the parental preference principle established in Turner to a custody dispute between a legal parent and a stepparent who had established psychological parent status). 50 Evans, 88 P.3d at 1089 (citing Troxel v. Granville, 530 U.S. 57, 70 (2000)). 51 Id. We also found that visitation could be ordered over the objection of a legal parent if the court found by clear and convincing evidence that the parent was unfit to make visitation decisions. Id. at 1090. Ken has not alleged that Kattaryna is unfit to make visitation decisions, so we need not consider this here. 52 Id. at 1089. 53 As the custody investigator concluded, [i]f [Kattaryna] is unable to accept [Ken] as [Simons] father, then any kind of custody/visitation schedule has the great potential to create a horrific existence for [Simon] as hes the object of a lifetime of conflict between [Ken] and [Kattaryna]. Even Ken admitted to the psychological evaluator that he has seriously considered bowing out of [Simons] life if it is determined that Kattaryna would be unable to cooperate with him in coparenting [Simon], although he loves [Simon] and does not want to do this. 54 We consider the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child in a custody dispute between two parents. AS 25.24.150(c)(6) But this is not a dispute between two parents. Consistent with our opinion in Evans, the parental preference may only be overcome if it is determined, by clear and convincing evidence, that it would be in the best interests of the child to award third party visitation. 55 Ware v. Ware, 161 P.3d 1188, 1192 (Alaska 2007) (quoting Dixon v. Bradsher, 779 S.W.2d 727, 732 (Mo. App. 1989)); Fortson v. Fortson, 131 P.3d 451, 462 n.34 (Alaska 2006) (citing Charles C. Marvel, Annotation, Unexplained Gratuitous Transfer of Property From One Relative to Another as Raising Presumption of Gift, 94 A.L.R.3d 608 (1979); 59 Am.Jur.2d Parent and Child 92 (2002)). 56 See Fortson, 131 P.3d at 461 (upholding finding that loans from former wifes parents were not legally enforceable). 57 See id. at 462 (The trial court is the factfinder, and given the evidence in the record supporting its decision [that payments from the former wifes parents were gifts], we cannot say that its finding that the loans were not marital debts was clearly erroneous.). 58 The superior court found the parties intended to own the house equally, although it recognized the payments had been unequal. It credited Ken for home improvements. It ordered the parties to refinance and to split those costs equally. It concluded that ultimately, Ken would be entitled to $78,883.75 in equity and Kattaryna to $50,132 (taking into account the improvement credit to Ken and the debt to his parents), less half the refinancing costs. 59 Bishop v. Clark, 54 P.3d 804, 811 (Alaska 2002) (quoting Wood v. Collins, 812 P.2d 951, 956 (Alaska 1991)). 60 Id. at 813 (citing Bergstrom v. Lindback, 779 P.2d 1235, 1238 (Alaska 1989)). AS 25.24.140(a) permits a court to award interim attorneys fees to a spouse. 61 Bergstrom, 779 P.2d at 1238 (citing L.L.M. v. P.M., 754 P.2d 262, 263-64 (Alaska 1988)). 62 Sanders v. Barth, 12 P.3d 766, 769 (Alaska 2000) (citing Lone Wolf v. Lone Wolf, 741 P.2d 1187, 1192 (Alaska 1987)). 63 Koller v. Reft, 71 P.3d 800, 808 (Alaska 2003) (citing Zimin v. Zimin, 837 P.2d 118, 124 (Alaska 1992)).
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