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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Misyura v. Misyura (11/19/2010) sp-6525

Misyura v. Misyura (11/19/2010) sp-6525, 242 P3d 1037

        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 

SERGEY MISYURA,                                    ) 
                                                   )    Supreme Court No. S-13579 
                        Appellant,                 ) 
                                                   )    Superior Court No. 4FA-08-01460 CI 
        v.                                         ) 
                                                   )   O P I N I O N 
LYUDMILA MISYURA,                                  ) 
                                                   )   No. 6525 - November 19, 2010 
                        Appellee.                  ) 
                                                   ) 

                Appeal from the Superior Court of the State of Alaska, Fourth 
                Judicial District, Fairbanks, Randy M. Olsen, Judge. 

                Appearances:   Thomas R. Wickwire, Law Office of Thomas 
                Wickwire,      Fairbanks,    for  Appellant.    Dorothy      E.  Heim, 
                Alaska Legal Services Corporation, Fairbanks, for Appellee. 

                Before:     Fabe,   Winfree,   Christen,   and   Stowers,   Justices. 
                [Carpeneti, Chief Justice, not participating.] 

                CHRISTEN, Justice. 

I.      INTRODUCTION 

                Both parties to this action sought custody of their three children during their 

divorce proceeding.   The trial court found the father had a history of domestic violence 

and awarded the mother sole physical and legal custody pursuant to AS 25.24.150(g). 

The father appeals, arguing: (1) he did not have a history of domestic violence sufficient 

to trigger the presumption against awarding him custody under AS 25.24.150(g); (2) 

there was no basis for denying him overnight visits; and (3) the trial court erred by 

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delegating to the mother the discretion to place conditions on the father's visitation. We 

affirm the custody decision; but because it was error for the trial court to delegate the 

authority   to   require   the   non-custodial   parent  to   attend   an   intervention   program   for 

batterers, we reverse and remand the visitation order.          We do not reach the question of 

overnight visitation. 

II.     FACTS AND PROCEEDINGS 

                Sergey and Lyudmila were married in Belarus in 1994.               They have three 

children: Karina, David, and Jessica, now approximately ages fifteen, nine, and four. 

Both parties were residents of Alaska residing in Fairbanks at the time of trial. 

                The parties separated in November 2007 when Sergey moved into a house 

he had been building for the family.  Initially, all three children lived with Lyudmila, but 

in February 2008 David went to live with Sergey. 

                Sergey filed a motion for temporary custody and appointment of a custody 

investigator on May 27, 2008. Lyudmila never received notice of the motion and did not 

attend the July 17, 2008 hearing.          The court granted Sergey's unopposed motion and 

entered an order for temporary custody awarding him sole custody of the three children. 

The children were removed from Lyudmila's custody and placed in Sergey's custody on 

or about July 25, 2008.   The children lived with Sergey until September 2008 when the 

court issued an interim child custody order awarding temporary custody of the three 

children to Lyudmila "with liberal visitation with Sergey." 

                Meanwhile,   Lyudmila   sought   a   domestic   violence   protective   order.      A 

magistrate held hearings on August 25, 2008 and October 2, 2008.                Lyudmila testified 

about an incident where Sergey passed her car in a narrow no-passing zone and nearly 

forced her off of the road.  The magistrate also heard testimony about an incident on the 

night of Lyudmila's birthday when Sergey saw her enter her apartment with another man 

                                                  -2-                                           6525
 

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and approached her window.   On the basis of this testimony, the magistrate found by a 

preponderance of the evidence that Sergey had committed criminal trespass and reckless 

endangerment.      The magistrate issued a long term protective order after the contested 

hearing.   Sergey did not appeal that order. 

                The divorce and custody trial was conducted in May 2009. During the trial, 

Lyudmila   testified   about   the   domestic   violence   she   had   experienced   throughout   the 

marriage.      She    testified  about   an   incident   where    Sergey    choked    her   nearly   to 

unconsciousness, another when he pushed her and she fell on the floor when she was 

seven months pregnant, and numerous instances where he forced her to have sexual 

intercourse with him. Based on this evidence, the trial court found that "there is a history 

of domestic violence by Sergey on Lyudmila" and awarded sole legal and physical 
custody to Lyudmila under the presumption in AS 25.24.150(g).1 

                But the court believed that Sergey had "in many ways . . . been a caring and 

good father" and should, under AS 25.24.150(j) be allowed unsupervised visits "in the 
best interests of the children."2     The court said that "[u]nsupervised visits with Sergey 

        1       AS 25.24.150(g) provides: "There is a rebuttable presumption that a parent 

who has a history of perpetrating domestic violence against the other parent, a child, or 
a domestic living partner may not be awarded sole legal custody, sole physical custody, 
joint legal custody, or joint physical custody of a child." 

        2       AS 25.24.150(j) provides: 

                If the court finds that a parent has a history of perpetrating 
                domestic violence under (g) of this section, the court shall 
                allow only supervised visitation by that parent with the child, 
                conditioned on that parent's participating in and successfully 
                completing      an  intervention    program   for   batterers,  and   a 
                parenting   education   program,   where   reasonably   available, 
                except that the court may allow unsupervised visitation if it 
                                                                                      (continued...) 

                                                 -3-                                              6525 

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may be held, in Lyudmila's discretion" as long as she felt the children were not adversely 

affected by the visits. If Lyudmila felt the children were being harmed, the court ordered 

that she could discontinue the unsupervised visits and instead arrange supervised visits. 

Finally, the court ordered that Lyudmila could require Sergey to attend a program called 

Alternatives to Violence as a prerequisite to unsupervised visits, at her discretion. 

                Sergey appeals.        He argues: (1) he does not have a history of domestic 

violence   sufficient   to   trigger   AS   25.24.150(g)'s   presumption   against   awarding   him 

custody; (2) there was no basis for denying him overnight visits; and (3) the trial court 

erred by delegating to Lyudmila the discretion to require him to attend Alternatives to 

Violence classes or to revoke his unsupervised visits. 

III.    STANDARD OF REVIEW 

                The superior court has "broad discretion to determine custody awards in a 
divorce proceeding so long as the determination is in the child's best interests."3                 We 

"will not reverse a superior court's custody determination unless it abused its discretion 
or its controlling factual findings are clearly erroneous."4 

                The superior court abuses its discretion when it "considers improper factors 

in making its custody determination, fails to consider statutorily mandated factors, or 

        2(...continued) 

                is shown by a preponderance of the evidence that the violent 
                parent has completed a substance abuse treatment program if 
                the court considers it appropriate, is not abusing alcohol or 
                psychoactive   drugs,   does   not   pose   a   danger   of   mental   or 
                physical harm to the child, and unsupervised visitation is in 
                the child's best interests. 

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

Naomi R., 119 P.3d 969, 973 (Alaska 2005)). 

        4       Id. (citing Elton H., 119 P.3d at 973-74). 

                                                   -4-                                            6525
 

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assigns disproportionate weight to particular factors while ignoring others."5   Factual 

findings are clearly erroneous if a review of the entire record leaves us "with a definite 
and firm conviction . . . that a mistake has been made."6 

                "We give 'particular deference' to the trial court's factual findings when 

they   are   based   primarily   on   oral   testimony,   because   the   trial   court,   not   this   court, 

performs the function of judging the credibility of witnesses and weighing conflicting 
evidence."7 

IV.	    DISCUSSION 

        A.	     The Trial Court Properly Awarded Lyudmila Sole Legal And Physical 
                Custody Under AS 25.24.150(g). 

                        1.	     The trial court did not err by declining to apply collateral 
                                estoppel      to  preclude      Sergey     from    re-litigating    the 
                                magistrate's domestic violence findings. 

                On October 3, 2008, after having found by a preponderance of the evidence 

that Sergey had committed two crimes involving domestic violence against Lyudmila, 

reckless endangerment and criminal trespass, a magistrate entered a long term protective 

order   in   Lyudmila's   favor.    Sergey   did   not   appeal   the   order. At   the   divorce   trial, 

Lyudmila asserted that AS 25.24.150(g) creates a presumption against awarding physical 

or legal custody to a perpetrator of domestic violence based on the magistrate's findings. 

Over Lyudmila's objection that the domestic violence issue was "res judicata,"                 Sergey 

        5       Id. (quoting Elton H., 119 P.3d at 974) (internal quotation marks omitted). 

        6       Jenkins v. Handel, 10 P.3d 586, 589 (Alaska 2000) (quoting Dingeman v. 

Dingeman, 865 P.2d 94, 96 (Alaska 1993)) (internal quotation marks omitted). 

        7       Ebertz v. Ebertz, 113 P.3d 643, 646 (Alaska 2005) (quotingIn re Adoption 

of A.F.M., 15 P.3d 258, 262 (Alaska 2001)). 

                                                  -5-	                                           6525
 

----------------------- Page 6-----------------------

introduced evidence and testimony about the incidents the magistrate already found to 

have occurred. 

                The superior court heard Sergey's evidence about the incident of criminal 

trespass and observed that "Lyudmila verified that on the occasion relied on by the 

[magistrate], when Sergey had staked out the apartment, that Sergey had not, in fact, 

entered   her   apartment."     The   superior  court   decided   that   it   did   "not   need   to   decide 

whether [an] un-appealed, flawed, domestic violence hearing['s] findings [were] res 

judicata, because it concludes from the testimony presented at trial that there is a history 

of domestic violence by Sergey on Lyudmila." 

                Sergey argues on appeal that the superior court erred by finding two acts 

of domestic violence occurred during the marriage.  Lyudmila counters that the superior 

court should not have reconsidered whether the episodes of domestic violence occurred 

because   the   magistrate   decided   that   question   after   a   contested   hearing.   Lyudmila 

contends that the doctrine of collateral estoppel should have prevented the superior court 

from hearing evidence that Sergey did not commit two incidents of domestic violence. 

                We have adopted the rule that the "decision to apply collateral estoppel is 

within the discretion of the trial court, although this discretion must be tempered by 
principles of fairness in light of the circumstances in each particular case."8  Our case law 

recognizes that there are circumstance when it would be unfair - and an abuse of the 
superior court's discretion - to require a party to re-litigate an issue previously decided.9 

        8       Borg-Warner Corp. v. Avco Corp. (Lycoming Div.), 850 P.2d 628, 635 

(Alaska 1993) (citing Chemetron Corp. v. Bus. Funds, Inc., 682 F.2d 1149, 1191 (5th 
Cir. 1982), vacated on other grounds, 460 U.S. 1007 (1983), cert. denied sub nom. Binliff 
v. Chemetron Corp., 460 U.S. 1013 (1983)). 

        9       See, e.g., Matanuska Elec. Ass'n v. Chugach Elec. Ass'n, Inc., 152 P.3d 

                                                                                        (continued...) 

                                                  -6-                                               6525 

----------------------- Page 7-----------------------

But   in   this   case,   we   do   not   reach   the   question   of   whether   it   was   unfair   to   require 

Lyudmila to relitigate the two instances of domestic violence; even if we concluded that 

the superior court abused its discretion, any error was harmless. The superior court made 

factual findings that allowed it to conclude, as the magistrate had concluded, that at least 

two instances of domestic violence occurred.                Because we separately decide that the 

superior court's factual findings are not clearly erroneous, they were sufficient to trigger 

the presumption in AS 25.24.150(g). 

                         2.	     The   trial   court's   finding   that   Sergey   had   a   history   of 
                                 domestic violence was not clearly erroneous. 

                 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."                  A parent has a "history of 

perpetrating domestic violence" under AS 25.24.150(h) 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."      If 

AS 25.24.150(g)'s presumption applies, it can be overcome if the perpetrating parent 

shows by a preponderance of the evidence that he or she has "successfully completed an 
intervention program for batterers [and] . . . does not engage in substance abuse."10                   It is 

        9(...continued) 

460,   468   (Alaska   2007)   ("Because   the   issues   were   vigorously   contested   before   the 
Commission, it is fair to apply the doctrine of collateral estoppel to the question whether 
Chugach   complied   with   prudent   utility   practice.");  State   of   Alaska,   Child   Support 
Enforcement Div. v. Bromley, 987 P.2d 183, 192 (Alaska 1999) (collateral estoppel 
"aim[s] to prevent parties from again and again attempting to reopen a matter that has 
been resolved by a court of competent jurisdiction" (internal quotation marks omitted) 
(citing Engebreth v. Moore, 567 P.2d 305, 307 (Alaska 1977))). 

         10      AS 25.24.150(h). 

                                                    -7-	                                              6525
 

----------------------- Page 8-----------------------

undisputed that Sergey did not attend an intervention program for batterers.                The court 

found no evidence that he engages in substance abuse. 

                Sergey   argues   the   trial   court   erroneously   applied   the   presumption   in 

AS 25.24.150(g) against him because there was no evidence that he had a history of 

domestic violence within the meaning of AS 25.24.150(h).                   Specifically, he alleges 

Lyudmila fabricated the domestic violence allegations. He relies on the fact that she "did 

not present a single witness, a medical record which might have shown her seeking 

treatment for injuries, a picture of a bruise or other injury, no claim to have sought 

counseling for the emotional aftermath, no claim to have lost work time because of 

injuries or embarrassment from bruises." 

                We apply the "clearly erroneous" standard of review to Sergey's appeal of 
the   trial   court's   factual  findings.11  The   trial   court   found   that   Sergey   had   terrified 

Lyudmila by nearly forcing her car off the road and believed her testimony that she had 

endured "years of domination, intimidation, demands, and physical, psychological, and 

sexual abuse" by Sergey.         Given Lyudmila's testimony on the domestic violence she 

experienced, the trial court's determination that Sergey was not a credible witness - and 

its finding that Lyudmila was - we are not left with a definite and firm conviction that 

the trial court erred when it found that  Sergey committed multiple acts of domestic 
violence against Lyudmila.12 

                The trial court's finding that Sergey had a history of domestic violence 

within the meaning of AS 25.24.150(h) was not clearly erroneous, and Sergey did not 

        11      Thomas v. Thomas, 171 P.3d 98, 102 (Alaska 2007) (citing Elton H. v. 

Naomi R., 119 P.3d 969, 973-74 (Alaska 2005)). 

        12      Ebertz v. Ebertz, 113 P.3d 643, 646 (Alaska 2005) (explaining that we give 

"particular   deference"   to   trial   judge's   findings   on   witness   credibility   (quoting In   re 
Adoption of A.F.M, 15 P.3d 258, 262 (Alaska 2001))). 

                                                  -8-                                            6525
 

----------------------- Page 9-----------------------

rebut   the   presumption   against   an   award   of   custody   by   completing   an   intervention 

program for batterers.     Having established these facts, the superior court did not err by 

invoking AS 25.24.150(g)'s presumption against Sergey and awarding sole legal and 
physical custody to Lyudmila.13 

        B.	     It   Was   Error   For   The   Trial   Court   To   Delegate   To   Lyudmila   The 
                Discretion   To   Impose   An   Intervention   Program   For   Batterers   On 
                Sergey's Right To Visit The Children. 

                Although the trial court granted sole legal and physical custody of the 

children to Lyudmila, it ordered that Sergey be allowed unsupervised visits "in the best 

interests of the children" under AS 25.24.150(j).  It explained that Lyudmila could stop 

Sergey's unsupervised visits if she felt they were harming the children or affecting her 

relationship   with   them.    The   court   also   allowed   Lyudmila   the  discretion   to   decide 

whether to require supervised visits with a supervisor of her choice, or to require Sergey 

to attend an intervention program for batterers as a prerequisite for unsupervised visits. 

                Sergey argues that because the trial court did not require his visits with the 

children to be supervised or require him to attend batterers' intervention classes, it was 

error for the court to delegate to Lyudmila the power to place these conditions on his 

visitation.    He   contends   that   the   power  to   make   these   decisions   -   supervised   or 

unsupervised visitation, domestic violence classes or no classes - lies with the court and 

cannot be delegated to Lyudmila.  We agree that it was error to delegate these decisions 

to Lyudmila. 

        13      See Michele M. v. Richard R., 177 P.3d 830, 837 (Alaska 2008) ("If a 

history of domestic violence is found, then the lower court must test, per AS 25.24.150, 
whether the presumption against awarding custody to the parent with a history of abuse 
has been overcome." (citing Puddicombe v. Dreka, 167 P.3d 73, 77 (Alaska 2007))). 

                                                 -9-	                                             6525 

----------------------- Page 10-----------------------

                 Alaska Statute 25.24.150, entitled "Judgments for custody" provides that 

if a court has jurisdiction and is the appropriate forum, it may "make, modify, or vacate 

an order for the custody of or visitation with [a] minor child that may seem necessary or 

proper."     Our rules and procedure recognize that the superior court may be aided in its 

custody and visitation decisions by the receipt of lay and expert testimony, by reports and 
testimony   from   child   custody   investigators,   psychologists   and   social   workers.14         But 

neither the civil rules nor our statutory scheme contemplate that the superior court may 

delegate the authority to require an intervention program for batterers as a prerequisite 
to a non-custodial parent's ability to exercise visitation.15  The situation in this case is not 

akin to one parent being given permission by the court to deny visitation if the other 

parent fails to abide by court-imposed conditions, such as an order allowing visitation 

only   if  the   non-custodial   parent   is   sober,   transports   the   child   in   an   insured   vehicle, 

transports the child in an appropriate car seat, or other similar conditions.                In this case, 

the court delegated to Lyudmila the authority to decide whether to impose the condition 

that Sergey complete an intervention program for batterers.                 That decision is one that 

must be made by the court. 

                 The conclusion that it was error to delegate to Lyudmila the authority to 

require an intervention program for batterers as a condition of Sergey's visitation is 

supported by practical considerations. Allowing such delegation in relationships marred 

        14       See AS 25.24.150; Alaska R. Civ. P. 90.6. 

        15       For example, AS 25.20.061 provides that if visitation is awarded to a parent 

who has committed a crime involving domestic violence against the other parent within 
five years of the award of visitation, "the court may set conditions for the visitation." 
(Emphasis added.)  Under this statute, the court may require that the perpetrator "attend 
and complete . . . a program for the rehabilitation of perpetrators of domestic violence . 
. . or other counseling" or set "any other condition necessary for the safety of the child, 
the other parent, or other household member." 

                                                   -10-                                              6525
 

----------------------- Page 11-----------------------

by domestic violence is likely to raise both the level of tension between the parents and 

the probability of future conflict.  It is for the judge, not the parties, to decide whether an 

intervention program for batterers should be imposed upon a non-custodial parent's 
visitation.16 

V.      CONCLUSION 

                We AFFIRM the trial court's custody order, but REVERSE and REMAND 

its visitation order. 

        16      Because   we   conclude   that   the   visitation   order   must   be   reversed   and 

remanded, we do not reach Sergey's separate argument that he was wrongfully denied 
overnight visitation. 

                                                 -11-                                             6525 
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