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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Williams v. Barbee (12/8/2010) sp-6528

Williams v. Barbee (12/8/2010) sp-6528

        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,   email 
        corrections@appellate.courts.state.ak.us. 

                 THE SUPREME COURT OF THE STATE OF ALASKA 

SHAYLA WILLIAMS, f/k/a                          ) 
SHAYLA BARBEE,                                   )       Supreme Court No. S-13604 
                                                ) 
                        Appellant,              )        Superior Court No. 3AN-08-05149 CI 
                                                ) 
        v.                                      )        O P I N I O N 
                                                ) 
JOMELL BARBEE,                                   )      No. 6528 - December 8, 2010 
                                                ) 
                        Appellee.               ) 
                                                ) 

                Appeal from the Superior Court of the State of Alaska, Third 
                Judicial District, Anchorage, Craig Stowers, Judge. 

                Appearances: Shayla Williams, pro se, Anchorage, Appellant. 
                Justin   R.   Eschbacher,   Law   Offices   of   G.   R.   Eschbacher, 
                Anchorage, for Appellee. 

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

                PER CURIAM. 

I.      INTRODUCTION 

                Jomell Barbee and Shayla Williams both seek primary physical custody of 

their young son De'Shawn.           Barbee and Williams have shared custody of De'Shawn 

since their separation in February 2008.   In April 2009 Williams requested a change in 

custody because she planned to move to Washington and because Barbee had pleaded 

----------------------- Page 2-----------------------

guilty to an assault involving an act of domestic violence toward Williams.                    After a 

hearing   in   June   2009,   the   superior   court   concluded   that   it   was   in   De'Shawn's   best 

interests to continue the shared custody arrangement as long as both parents remained in 

Anchorage   but   awarded   primary   physical  custody   to   Barbee   if   and   when   Williams 

relocated out of state.     Williams appeals the superior court's custody award, arguing 

primarily that the court should not have granted custody to Barbee because Barbee had 

a "history of domestic violence" that raised a rebuttable statutory presumption against 

custody and he had not overcome the presumption. 

                Because the trial court was presented with multiple allegations of abuse and 

found that at least one incident of domestic violence had been perpetrated by Barbee, it 

was   required   to   make   an   express   finding  as   to   whether   Barbee   had   a   "history   of 

perpetrating domestic violence" under AS 25.24.150(h). Failure to make this finding was 

plain error.     We thus reverse and remand for the superior court to make an express 

determination whether there is a "history of perpetrating domestic violence."                    If the 

superior     court   finds  that  Barbee     has  this  history,   it  must   address    the  statutory 

presumption against awarding custody to Barbee under AS 25.24.150(g) before awarding 
any custody to Barbee.1 

II.     FACTS AND PROCEEDINGS 

        A.      Barbee And Williams's Relationship And Divorce 

                Jomell Barbee and Shayla Williams (f/k/a Shayla Barbee) are the parents 

of De'Shawn Barbee. De'Shawn was born on November 30, 2005. Barbee and Williams 

married on April 14, 2006 in Anchorage. 

        1       Though Williams did not appeal the portion of the superior court's order 

granting shared physical custody to the parties should Williams remain in Alaska, we 
note that before granting any type of custody to Barbee the superior court must address 
the presumption of AS 25.24.150(g) if it finds that Barbee has a history of perpetrating 
domestic violence under AS 25.24.150(h). 

                                                 - 2 -                                           6528
 

----------------------- Page 3-----------------------

                Williams alleges that Barbee was abusive during the parties' marriage; she 

claims   that   Barbee   had   "anger   issues"   and   that   arguments   would   "always   turn   into 

something bigger than expected and would eventually end with him abusing [her]." 

According to Williams, Barbee would "choke . . . hit . . . kick . . . [and] throw [her] on 

the ground" and several times she called the police. 

                On the night of December 17, 2007, Barbee allegedly "tackled [Williams] 

from behind and put her in a headlock."           Williams stated that Barbee "used both arms 

and strangled [Williams] to the point she thought that she would lose consciousness" and 

after Barbee "let go" Williams experienced vomiting, difficulty breathing, and trouble 

swallowing.   Williams later alleged that she had to fight for her life and thought that she 

was going to die.   Williams called the police the next morning; when the police arrived 
they observed that Williams had "pet[e]chia2 on her neck and behind both ears" and 

"what appeared to be blood pooled behind both of her lower eyelids and red marks on 

her right arm and wrist."       Barbee was arrested and charged with assault in the second 

degree on December 20. 

                On February 15, 2008, while the criminal charge against him was pending, 

Barbee filed for divorce.       Barbee and Williams, acting pro se, came to an agreement 

regarding custody and property division at a December 10, 2008 status hearing.                      On 

February 11, 2009, the superior court entered a decree of divorce stating that Barbee and 

Williams had been able to negotiate a settlement regarding property and child custody. 

Barbee and Williams agreed to have joint legal custody and shared physical custody of 

De'Shawn; De'Shawn would spend Friday afternoon through Monday morning with 

        2       A "petechia" is "a minute reddish or purplish spot containing blood that 

appears in skin or mucous membrane as a result of localized hemorrhage." MERRIAM- 
W E B S T E R      D I C T I O N A R Y ,     a v a i l a b l e  a t   h t t p : / / w w w . m e r r i  a m - 
webster.com/dictionary/petechia. 

                                                  - 3 -                                             6528 

----------------------- Page 4-----------------------

Barbee and Monday morning through Friday afternoon with Williams, with alternating 

holiday arrangements. 

                On February 27, 2009, Barbee pleaded guilty to the third-degree assault 

charge that arose from the December 2007 incident.              He was sentenced to 24 months 

imprisonment with 23 months suspended and three years probation.                     As part of his 

probation, Barbee agreed to enroll in and complete a 24-week state-approved Domestic 

Violence Intervention Program and not to have any contact with Williams. 

        B.      Williams's Request For Custody Modification 

                On    April   27,  2009,   Williams     filed  a  motion   to  modify    the  custody 

arrangement based on two distinct changed circumstances. She first argued that Barbee's 

guilty   plea   to   a   felony   assault   charge   stemming   from   an   act   of   domestic   violence 

warranted a change in custody.         Specifically citing AS 25.24.150(g) and (h), Williams 

contended that Barbee's plea proved that he had engaged in domestic violence, making 

him ineligible for a physical custody award unless he overcame the statutory presumption 

against custody.      Williams added that co-parenting was no longer an option because 

Barbee was prohibited from having contact with Williams and because Williams did not 

"feel comfortable or safe sharing custody" with Barbee. 

                Williams also argued for custody modification because she planned to move 

to Washington with her soon-to-be husband.   She stated that it would be in De'Shawn's 

best interests to move with her.       Williams allowed that De'Shawn had always lived in 

Alaska and had ties to Barbee's family in the state, but argued that because De'Shawn 

was only three years old, he would easily be able to adapt to a new environment. 

                Barbee opposed Williams's motion, arguing that pleading guilty to a single 

act of domestic violence did not constitute a "history of perpetrating domestic violence." 

Barbee stated that it would be "mentally and emotionally devastating" to De'Shawn to 

                                                 - 4 -                                          6528
 

----------------------- Page 5-----------------------

leave Barbee's extended family in Alaska.  Barbee then asked for full legal and physical 

custody of De'Shawn. 

        C.      The Modification Hearing And The Superior Court's Custody Award 

                On June 24, 2009, the superior court held a hearing on Williams's motion 

to modify custody. The court initially found that Williams's reasons for leaving the state 

were "a legitimate change in circumstances" such that the court would determine what 

custody arrangement would be in De'Shawn's best interests if and when Williams moved 

out of state. 

                The court heard testimony from both parties.  Barbee argued that it would 

be best for De'Shawn to stay in Alaska because De'Shawn had been born and raised in 

Anchorage and Barbee's extended family members in Anchorage provided care and 

support     to  both  Barbee    and   De'Shawn.        Barbee    explained    how    he  provides    for 

De'Shawn's financial, physical, and mental needs.  He also testified that De'Shawn had 

been in a "stable" environment and that despite the parties' divorce he had encouraged 

the relationship between De'Shawn and Williams. When asked about the assault, Barbee 

admitted that he "choked" Williams, calling it "a terrible mistake."  He disputed that he 

ever   "beat"   Williams   as   she   alleged.  Barbee   testified   that   he   was   taking   domestic 

violence classes and planned to complete them within the month. 

                Williams also testified that she provides for De'Shawn's needs. She agreed 

that De'Shawn was in a "stable" environment in Anchorage, but explained that he was 

"still pretty young" and "very adaptable to changes."  She also detailed how she would 

make   sure   that   De'Shawn   stayed   in   touch   with   Barbee   if   she  moved   out   of   state. 

Williams believed that it would be best for De'Shawn to move with her to Washington 

because she and her husband could provide a "family structure" including future siblings 

and financial security, and neither of them had any type of criminal or domestic violence 

background. 

                                                 - 5 -                                           6528
 

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

                 After Barbee and Williams testified, the superior court observed that this 

was "a close case" and summarized the best interests factors under AS 25.24.150(c). The 

superior court found that De'Shawn had the typical needs of any child of his age, that 

both   Barbee   and   Williams   were   capable   of   meeting   those   needs,   that   the   child's 

preference was not a factor because of De'Shawn's young age, and that there was love 
and affection between De'Shawn and both of his parents.3               These factors weighed evenly 

between Barbee and Williams. 

                 The superior court then turned to the fifth statutory factor, the desire to 
maintain   continuity,4      and   found   that   De'Shawn   had   "been   in   a   stable,   satisfactory 

environment"   and   that   Barbee's   extended   family   in   Anchorage   was   "an   important 

factor." The court determined that it would be in De'Shawn's best interests to "continue 

the stability" and weighed the fifth factor in favor of Barbee. 

                 Examining the sixth factor, willingness and ability to foster a relationship 
between the other parent and the child,5 the court first noted that the factor might not 

apply to the case in light of the domestic violence between the parties,6 but ultimately 

        3        The superior court later noted that substance abuse was not an issue for 

either party. 

        4        AS 25.24.150(c)(5) ("the length of time the child has lived in a stable, 

satisfactory environment and the desirability of maintaining continuity"). 

        5        AS 25.24.150(c)(6) ("the willingness and ability of each parent to facilitate 

and encourage a close and continuing relationship between the other parent and the 
child"). 

        6        We have held that the sixth statutory factor might not be relevant where 

domestic violence has occurred because a victimized parent should not be expected to 
foster a relationship with the abusive parent.            Puddicombe v. Dreka, 167 P.3d 73, 77 
(Alaska 2007) ("Once the trial court makes an evidence-based finding that domestic 
violence   occurred   .   .   .   it   should   explicitly   address   whether   or   not   the   parent   is   a 
                                                                                           (continued...) 

                                                   - 6 -                                                6528 

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

concluded that the factor did not favor either party. 

                Finally,   the   superior   court   touched   on   the   seventh   factor,   evidence   of 
domestic violence,7 and found that the factor weighed in favor of Williams because of 

Barbee's felony assault conviction. The superior court acknowledged that Williams had 

alleged other instances of abuse and filed other domestic violence petitions that were 

denied but suggested that none of the additional incidents had been proved. Thus, the 

court evaluated the seventh factor based on "this one really big deal incident here where 

you choked her terribly" and found that the seventh factor weighed against Barbee. 

                 Summarizing its best interests analysis, the superior court found "one factor 

favoring     [Williams]     fairly  strongly    [and]   one   factor   favoring    [Barbee]    somewhat 

strongly, and the rest of the factors [] equally balanced."  The court concluded that "the 

factor of stability and the existence of the extended family on Mr. Barbee's side . . . 

suggest   that   De'Shawn's   best   interest would   be   best   served   by   having   Mr.   Barbee 

exercise what would probably be called the custodial period."                 The court ruled       that it 

would maintain the current custody arrangement if Williams remained in Alaska, but 

Barbee would be awarded primary physical custody if Williams moved to Washington. 

        6       (...continued) 

continuing threat to the health and safety of the other parent [or] the children prior to 
relying on the parent's willingness to foster a relationship under AS 25.24.150(c)(6)."); 
see also AS 25.24.150(c)(6) (directing courts to consider this factor "except that the court 
may not consider this willingness and ability if one parent shows that the other parent has 
. . . engaged in domestic violence against the parent or a child, and that a continuing 
relationship with the other parent will endanger the health or safety of either the parent 
or the child"). 

        7       AS 25.24.150(c)(7) ("any evidence of domestic violence, child abuse, or 

child neglect in the proposed custodial household or a history of violence between the 
parents"). 

                                                   - 7 -                                            6528
 

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        On July 22, 2009, the superior court entered a written order memorializing its 

decision: 

                1.	     Shayla   Williams'[s]   Motion   to   Modify   Custody   is 
                        denied. 

                2.	     If and when Shayla Williams relocates out of state, 
                        Jomell Barbee shall exercise primary physical custody 
                        of the parties' child De'Shawn . . . . 

                3.	     As    long   as   Ms.   Williams     continues    to  reside   in 
                        Anchorage, the parties shall exercise shared physical 
                        custody      under    the   current    (previously      ordered) 
                        schedule. 

                4.	     The   parents   shall   continue   to   exercise   shared   legal 
                        custody. However, if Ms. Williams relocates out of 
                        Anchorage,       Mr.    Barbee    may    make     all  decisions 
                        regarding De'Shawn's education. 

Williams asked the superior court to reconsider the custody ruling on July 6, 2009; her 

motion was denied on July 22.  Williams appealed the superior court's decision. 

III.	   STANDARD OF REVIEW 
                A superior court has broad discretion in determining child custody matters.8 

We will not reverse a superior court's custody determination unless we are "convinced 

that the trial court abused its discretion or that its controlling factual findings are clearly 
erroneous."9    A superior court abuses its discretion in the custody context when it "fails 

to consider statutorily mandated factors, weighs factors improperly, or includes improper 

        8	      Wee v. Eggener, 225 P.3d 1120, 1124 (Alaska 2010). 

        9       Michele   M.   v.   Richard   R.,   177   P.3d   830,   834   (Alaska   2008)   (quoting 

Valentino v. Cote, 3 P.3d 337, 339 (Alaska 2000)). 

                                                  - 8 -	                                             6528 

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

factors in its decision."10     A factual finding is clearly erroneous when a review of the 

entire record leaves us with the "definite and firm conviction" that a mistake has been 
made.11    We do not "readily second guess a trial court's custody determination because 

it is the function of the trial court, not of this court, to judge witnesses' credibility and to 
weigh conflicting evidence."12 

IV.     DISCUSSION 

                Alaska Statute 25.20.110 provides that the superior court may modify child 

custody or visitation "if the court determines that a change in circumstances requires the 
modification of the award and the modification is in the best interests of the child."13             The 

parent seeking modification must first establish that there has been a "significant change 
in circumstances affecting the child's best interests."14             As a matter of law, both the 

occurrence of a crime involving domestic violence and one parent's relocation out of 
state constitute significant changes in circumstances.15              Once a party demonstrates a 

qualifying change in circumstances, the court will determine whether modification is in 

        10      Id. 

        11       Wee, 225 P.3d at 1124. 

        12      Michele M., 177 P.3d at 834 (internal quotation marks omitted). 

        13      AS 25.20.110(a). 

        14      Ebertz v. Ebertz, 113 P.3d 643, 647 (Alaska 2005). 

        15      AS 25.20.110(c) (stating that a "finding that a crime involving domestic 

violence     has   occurred    since   the   last  custody    .  .  .  determination"    is  a  changed 
circumstance); Chesser-Witmer v. Chesser, 117 P.3d 711, 717 (Alaska 2005) (explaining 
that   a   change   of   circumstances   "exists   as   a   matter   of  law   when   a   custodial   parent 
[including a parent with joint custody] moves out of state"). 

                                                  - 9 -                                            6528
 

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the best interests of the child.16 

                 In cases involving a parent's relocation out of state, as long as the relocating 

parent's reasons for moving are legitimate, the trial court must examine the best interests 
of the child.17   Here, the superior court found that Williams's reasons for relocating were 

"totally legitimate" and proceeded to analyze De'Shawn's best interests. 

        A.       Domestic Violence And The Presumption Against Custody 

                 Alaska Statute 25.24.150(g), enacted by the legislature in 2004, directs that 

"[t]here   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."18          The statute provides that a person 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 court finds that the parent has 
engaged in more than one incident of domestic violence."19               We define "serious physical 

injury"   under   subsection   (h)   as   "physical   injury   caused   by   an   act   performed   under 

circumstances that create a substantial risk of death; or physical injury that causes serious 

and    protracted     disfigurement,     protracted   impairment       of  health,   protracted     loss  or 

         16      Ebertz, 113 P.3d at 647. 

         17      Eniero v. Brekke, 192 P.3d 147, 150 (Alaska 2008); see also Barrett v. 

Alguire, 35 P.3d 1, 7 (Alaska 2001) (stating that "the legal standard in custody cases 
where one parent chooses to relocate is the same whether the superior court has an initial 
custody determination or motion to modify custody before it"). 

         18      Ch. 111,  5, SLA 2004. 

         19      AS    25.24.150(h);  see      also   Lisa   Bolotin,    Note,  When      Parents    Fight: 

Alaska's Presumption Against Awarding Custody to Perpetrators of Domestic Violence, 
25 ALASKA L. REV. 263, 275 (2008) (explaining that the Alaska statute "requires that a 
parent perpetrate a certain level of violence . . . before the presumption takes effect"). 

                                                   - 10 -                                               6528 

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

impairment of the function of a body member or organ, or that unlawfully terminates a 
pregnancy."20      We   have   held   that   once   the   trial  court   determines   that   a   party   has   a 

"history of perpetrating domestic violence" as defined by subsection .150(h), "the path 

charted in subsection .150(g)-(i) must be followed," i.e., the rebuttable presumption 
against custody applies.21 

                At the June 24, 2009 hearing and in its July 22, 2009 order the superior 

court granted primary physical and shared legal custody to Barbee should Williams 

relocate out of state.     Williams's main argument on appeal is that it was error for the 

superior court to award custody to Barbee because Barbee has a history of domestic 

violence and failed to rebut the statutory presumption against custody.                   Specifically, 

Williams   asserts   that   "despite   recognizing  that   Mr.   Barbee   had   engaged   in   serious 

domestic violence the court failed to make a specific finding or clearly address the 

presumption that Mr. Barbee could not be awarded physical or legal custody of the child 

pursuant to AS 25.24.150(g)."   Barbee responds that the superior court found that he did 

not have a history of domestic violence and so did not have to address the presumption 

of AS 25.24.150(g). 

                1.	     The      statutory      presumption       against      custody      applies    in 
                        modification proceedings. 

                As    a   threshold    matter,   we    must   determine     whether     the   rebuttable 

presumption against awarding custody to a parent who has "a history of perpetrating 
domestic violence" applies in custody modificationproceedings.22  We have held that the 

        20      Parks      v.   Parks,     214    P.3d    295,    301     (Alaska     2009)     (quoting 

AS 11.81.900(b)(56)). 

        21	     Wee v. Eggener, 225 P.3d 1120, 1125 (Alaska 2010). 

        22      Neither party raised this point on appeal, but Barbee's counsel raised it at 

                                                                                         (continued...) 

                                                 - 11 -	                                             6528 

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"ultimate   focus"   in   the   custody   modification  context   "is   the   best   interests   of   the 
children."23    We conclude that applying the  statutory presumption against custody is 

appropriate and necessary in light of this focus. 

                First, the legislative history behind AS 25.24.150(g) strongly indicates that 

the   legislature   intended   for   the   presumption   to   apply   in   modification   proceedings. 
Alaska Statute 25.24.150(g) was enacted in 2004 by House Bill 385.24                      The primary 

purpose     of   H.B.   385    was   to  protect    children   from    potentially    adverse    custody 

determinations in response to growing evidence that domestic violence has severe and 
long-lasting effects on children.25  The bill sought to decrease the likelihood that children 

would be placed in the custodial household where domestic violence exists by ensuring 

that domestic violence was adequately and specifically included when courts analyzed 
a child's best interests.26    This purpose is equally valid at a modification hearing where, 

        22      (...continued) 

oral argument. Moreover, we must answer this threshold question before considering the 
superior court's obligations in the modification context. 

        23      Lashbrook v. Lashbrook, 957 P.2d 326, 328 (Alaska 1998). 

        24      House Bill (H.B.) 385, 23d Leg., 2d Sess. (2004). 

        25      See Minutes, House Judiciary Comm. Hearing on H.B. 385, 23d Leg., 2d 

Sess.   (March   1,   2004)   (Statement   of   Chair   Lesil   McGuire,   sponsor)   (stating   that 
protection of children is the overarching  goal of H.B. 385 and later explaining that 
similar policies against awarding custody to abusive parents have been widely supported 
and implemented in other jurisdictions in response to "a growing body of social science 
literature");  see   also   H.R.  REP.   NO.  101-737,   at   3   (1990)   (Congress   reporting   that 
domestic      violence    causes   children    to  "experience     shock,    fear,  guilt,  long   lasting 
impairment of self-esteem, and impairment of development and socialization skills"). 

        26      Minutes, Senate Judiciary Comm. Hearing on H.B. 385, 23d Leg., 2d Sess. 

(April 27, 2004) (Statement of Representative Lesil McGuire, sponsor) (explaining that 
batterers are often awarded custody and that H.B. 385 seeks to "level the playing field" 
                                                                                         (continued...) 

                                                  - 12 -                                              6528 

----------------------- Page 13-----------------------

just as in making an initial custody determination, a court should fully address any 

existence of domestic violence and avoid making a custody determination that will place 

a child in the custody of an abusive parent. 

                To accomplish its goal, H.B. 385 refined the best interests analysis by 

requiring that courts consider the existence of domestic violence not only as part of the 

traditional "best interests" factors laid out in AS 25.24.150(c) but also as triggering a 
rebuttable presumption against custody where a history of domestic violence exists.27 

It   follows   that   the   presumption   is   properly   a   part   of  the   "best   interests"   analysis   in 
modification proceedings just as it is in initial custody determinations.28 

                Adding      support    to   our  conclusion    that    the  presumption      applies    in 

modification cases, we observe that AS 25.20.110 does not limit a superior court                       to 

        26       (...continued) 

by requiring that courts consider domestic violence not only as one factor under .150(c) 
but as raising a rebuttable presumption against custody); see also Bolotin, supra note 19, 
at 287-89 (commenting that the benefit of the rebuttable presumption is that it "ensures 
that courts give adequate weight to the existence of domestic violence in determining the 
child's best interests" and "is the best way to ensure that domestic violence is always 
appropriately considered"). 

        27      See Minutes, House Judiciary Comm. Hearing on H.B. 385, 23d Leg., 2d 

Sess. (March 1, 2004) (Statement of Chair Lesil McGuire, sponsor) ("We will ask the 
court to continue to . . . consider[] the factors that are in [AS] 25.24.150(c), . . . but we're 
also saying that you have to consider the rebuttable presumption that's now going to be 
present in what will be a new subsection (g)."). 

        28      In addition, the amendments and additions to AS 25.24.150 were based on 

a model statute, which directed that "[i]n every proceeding where there is at issue a 
dispute as to the custody of the child" the presumption against custody should apply. 
Bolotin, supra note 19, at 273 (quoting the MODEL CODE ON DOMESTIC AND FAMILY 
VIOLENCE  401 (Nat'l Council of Juvenile and Family Court Judges 1994)) (emphasis 
added).      A   modification   proceeding   is   clearly   a   situation   where   child   custody   is   in 
dispute, and so the rebuttable presumption should apply. 

                                                  - 13 -                                           6528
 

----------------------- Page 14-----------------------

consideration   of  only   the   factors   under   subsection   (c)   when   determining   whether 
modification   is  warranted.29     Nor   have   we   so   limited   courts   making   any   custody 

determinations - our guiding concern has long been the best interests of the child and 
not strict adherence to the factors enumerated in the statute.30       In addition, we recently 

assumed that the statutory presumption applies to a proceeding to modify visitation; there 
is no reason why it should not similarly apply to a proceeding to modify custody.31          And 

employing the presumption where one party seeks modification is a logical extension of 
our cases applying the other subsections of AS 25.24.150 to modification proceedings.32 

Moreover, given that a finding that a crime involving domestic violence has occurred 

since the last custody determination is, as a matter of law, a changed circumstance that 

warrants     a  modification    proceeding,    it would    make    little  sense  to  exclude   the 
presumption against custody in modification cases.33  The statutory purpose of protecting 

children would be completely unfulfilled if, in a modification hearing triggered by the 

occurrence of a crime involving domestic violence, the court could ignore the statutory 

        29     AS 25.20.110(a) (in modifying a custody award, the court must determine 

that "the modification is in the best interests of the child"); see also Chapter 111,  1, 
2, SLA 2004 (showing that H.B. 385 specifically amended statutory provisions directing 
courts to look to AS 25.24.150(c) to include the presumption under AS 25.24.150(g)). 

        30     See Schmitz v. Schmitz, 88 P.3d 1116, 1122-23 (Alaska 2004) ("The court 

may consider other factors not listed in the statute if those additional considerations are 
relevant to the child's best interests."). 

        31     See Morris v. Horn, 219 P.3d 198, 208-10 (Alaska 2009) (remanding for 

the trial court to independently find whether multiple incidents of domestic violence had 
occurred rather than invoking issue preclusion but assuming that the presumption would 
apply to limit visitation under AS 25.24.150). 

        32     See    West  v.  Lawson,    951   P.2d  1200,   1203   (Alaska   1998)    (applying 

subsection .150(d) in the modification context). 

        33     AS 25.20.110(c). 

                                              - 14 -                                         6528
 

----------------------- Page 15-----------------------

presumption against awarding custody to the perpetrator of domestic violence. 

                Finally, we believe that applying the statutory presumption against custody 

is undoubtedly appropriate in a case such as this one, where the presumption was not 

addressed at the initial custody determination because the custody award was made 
pursuant   to   an   agreement   of   the   parties.34 Applying   the   presumption   is   especially 

necessary where the settlement agreement awarding custody was made by parties with 
a history of domestic violence during the marriage.35 

                2.	     The    superior     court   must    make    express    findings    regarding 
                        whether      Barbee     has   a   "history    of  perpetrating      domestic 
                        violence." 

                Williams   maintains   on   appeal   that   Barbee   "has   a   history   of   domestic 

violence as evidenced by his conviction and his own testimony" and that the trial court 

"recognized that Mr. Barbee has a history of domestic violence." Citing to the same page 

of the transcript as Williams, Barbee responds that the superior court found that he did 

not have a history of domestic violence, and so did not have to address the statutory 

presumption against custody. The transcript suggests that neither party is entirely correct 

-    the   superior   court  did   not  make    any   express   finding   regarding    a  "history   of 

perpetrating domestic violence" under AS 25.24.150(h). While the trial court's dialogue 

did include the phrase "history of domestic violence," read in context, it appears that the 

        34      See Hamilton v. Hamilton, 42 P.3d 1107, 1115 (Alaska 2002) (clarifying 

that while a court modifying a custody award should consider findings made at the 
original hearing, the court does not have to give such deference where "no findings of 
fact [were] made at the time of the original order as it was entered into pursuant to a 
settlement agreement"). 

        35      See Crane v. Crane, 986 P.2d 881, 889 n.27 (Alaska 1999) (noting that in 

certain circumstances a court may examine a custody agreement more closely, such as 
when there has been domestic violence between the parties); see also AS 25.24.220(h)(2) 
(providing that a court will use a heightened level of scrutiny in reviewing dissolution 
agreements if there is evidence of domestic violence during the marriage). 

                                                - 15 -	                                         6528
 

----------------------- Page 16-----------------------

term "history of domestic violence" referred to the best interests of the child criteria 
found at AS 25.24.150(c)(7) rather than a separate analysis under subsection .150(h).36 

                 We have held that "when the record shows that domestic violence has 

occurred and the trial court so finds, it is plain error for the court not to make findings as 

to   whether   the   domestic   violence   amounted   to   a   history   of   perpetrating   domestic 
violence."37    In Puddicombe v. Dreka, we concluded that it was error for the superior 

court to fail to evaluate whether there was a history under AS 25.24.150(h) after the court 

found when discussing the seventh best interests factor that both parties had engaged in 

        36       In full, the trial court's statement was: 

                         The next factor is evidence of domestic violence, child 
                 abuse or child neglect, and a history of domestic violence 
                 between the parents, and this factor weighs in favor of Ms. 
                 Williams and against Mr. Barbee, principally because of this 
                 conviction. Now, I know that you've argued that there have 
                 been other instances. 
                         . . . . 

                         I  also   know     that  there   have   been    other   domestic 
                 violence petitions filed and denied . . . I don't blame people 
                 for filing things if they feel that they really have been the 
                 victim of domestic violence, but on the other hand it's not 
                 been proven. So what we've got is we've got this one really 
                 big deal incident here where you choked her terribly, and that 
                 factor weighs against you. 

        37      Puddicombe v. Dreka, 167 P.3d 73, 77 (Alaska 2007); see also Bolotin, 

supra note 19, at 276-77 (noting that fact finders in Alaska must follow the procedures 
outlined in subsections .150(g)-(i) "whenever one party presents credible evidence of 
domestic violence" such that "once the issue of domestic violence is properly raised, the 
court must address the question" whether there is a history pursuant to the statute's 
definition). 

                                                  - 16 -                                             6528
 

----------------------- Page 17-----------------------

domestic violence.38       The evidence of domestic violence in Puddicombe consisted of 

plaintiff's allegations (presented without witness testimony) that defendant punched, 

sexually assaulted, choked, and threatened to kill her along with extensive testimony 

about several altercations that occurred between the parties, though "most of the evidence 
regarding physical violence was from the parties themselves and was highly contested."39 

Even so, because the superior court found that domestic violence had occurred, it was 

required   to   "explicitly   address   whether   it   was   serious   enough   to   be   a   history   of 
perpetrating domestic violence under the definition set out in subsection .150(h)."40 

                 Addressing this same issue, we recently concluded that a trial court must 

determine whether domestic violence amounted to a history under AS 25.24.150(h) even 
when evidence of domestic violence is less "overwhelming" than in Puddicombe.41   In 

Michele M. v. Richard R. the superior court did not find any relevant, recent domestic 

violence incidents and "may have implicitly determined that [defendant's] past acts of 

domestic violence were neither numerous nor significant and so did not amount to a 

                                                        42 
'history of perpetrating domestic violence.' "             Still, we remanded, stating that "it was 

plain error for the court not to further determine whether [defendant's] previous acts of 
domestic violence constituted" a history under the statute.43   We hold today that where 

a superior court finds that domestic violence occurred, it must make express findings 

regarding whether the incident or incidents of domestic violence constitute a "history of 

        38       167 P.3d at 75-77.
 

        39      Id. at 75-76.
 

        40
     Id. at 77. 

        41      Michele M. v.   Richard R., 177 P.3d 830, 837-38 (Alaska 2008). 

        42      Id. at 837 (emphasis added). 

        43      Id. at 837-38. 

                                                  - 17 -                                             6528
 

----------------------- Page 18-----------------------

perpetrating domestic violence" under AS 25.24.150(h). 

                At the June 24, 2009 hearing, the superior court made some comments 

about both the single substantiated incident and Williams's other alleged incidents but 

did not expressly state whether they amounted to a statutorily defined history of abuse. 

First, the court referred to the incident that resulted in Barbee's assault conviction and 

recognized that it was "one really big deal incident here where you choked her terribly." 

Crucially, however, the superior court did not explain whether "chok[ing] her terribly" 

amounted to causing a "serious physical injury" such that the single incident constituted 

a history under subsection .150(h). 

                "Serious      physical   injury"    in  the  context    of  the  presumption      against 

awarding       custody    means     "physical     injury   caused     by   an   act  performed      under 

circumstances that create a substantial risk of death; or 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."44     The absence of a finding in this case is especially problematic because 

Williams   claimed   that   she   feared   for   her   life   during   the   incident,   and   the   charging 

document, which was "based upon a review of [the] police report" indicates: 

                         [Williams] reported that her husband tackled her from 
                behind and put her in a headlock.   She said that he used both 
                arms and strangled her to the point she thought she would 
                lose consciousness.   She stated that after he let go, she began 
                vomiting and had difficulty breathing.            She stated that her 
                voice was hoarse and continued to have trouble swallowing 
                on the morning of the 18th when she called the police.               The 
                officer   observed   that   she   had   pet[e]chia   on   her   neck   and 
                behind   both   ears.     The   officer   noted   what   appeared   to   be 
                blood pooled behind both of her lower eyelids and red marks 

        44      Parks      v.   Parks,     214    P.3d     295,    301    (Alaska      2009)     (quoting 

AS 11.81.900(b)(56)). 

                                                  - 18 -                                              6528 

----------------------- Page 19-----------------------

                on her right arm and wrist. 

On   remand   the   superior   court   must   make   an   explicit   finding   whether   this   choking 

incident,     standing     alone,   amounts      to   a  history    of   domestic     violence     under 

AS 25.24.150(h). 

                We   next   turn   to   Williams's   many   additional   allegations   of   domestic 

violence in her pleadings to the superior court.  Even if the superior court determines on 

remand that the single choking incident did not amount to a history of domestic violence, 

if Williams's evidence warrants a finding that there were additional incidents of domestic 

violence, then there was a "history of perpetrating domestic violence," and the superior 

court must address the rebuttable presumption against custody. 

                3.	     If   pro   se   parties   make   allegations   of   domestic   violence   the 
                        superior court must inquire into the allegations and allow the 
                        parties to present evidence regarding the allegations. 

                InParks v. Parks, we concluded that AS 25.24.150(g) "requires trial courts 

to consider alleged incidents of domestic violence" and that it is appropriate to "question 

the pro se litigants about facts relevant to the issue" to determine whether an alleged 
event   was   an   incident   of   domestic   violence.45    We   reaffirm   this   position   here   and 

conclude that it was error not to give Williams an opportunity to put forth evidence to 

support her allegations. 

                In Parks, a husband admitted during a custody hearing that he had thrown 

water in his wife's face; the trial court found that this was not an incident of domestic 

violence for purposes of triggering the statutory presumption against custody because 
there was no evidence that the wife was afraid.46          We clarified on appeal that the water- 

throwing would constitute domestic violence if the husband was attempting to place his 

        45      214 P.3d at 302 (emphasis added). 

        46      Id. at 300. 

                                                 - 19 -                                              6528 

----------------------- Page 20-----------------------

wife in fear of imminent physical injury.47          We then remanded to the superior court for 

additional findings, explaining: 

                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.[48] 

                In this case, Williams's pleadings to the superior court contained numerous 

allegations of domestic abuse.        Williams detailed in her motion to modify custody that 

during their marriage Barbee had "anger issues" and that arguments would end with 

Barbee "abusing" Williams, including choking, hitting, kicking, and throwing Williams 

to the ground.     Yet, the superior court did not take testimony from Williams about the 
individual incidents alleged in her motion to modify custody.49  Nor did the trial court ask 

Williams   to   provide   additional   information   that   would   have   allowed   the   court   to 
determine whether the alleged events were acts of domestic violence.50   The superior 

court should have inquired into the details of the events and provided an opportunity for 

        47      Id. 

        48      Id. at 302; see also id. at 300-01 (remanding for the trial court to also 

determine whether the husband's alleged violations of a long-term protective order were 
incidents of domestic violence that would constitute a "history" under AS 25.24.150(h) 
where the trial court made no findings on the subject). 

        49      While the superior court did not expressly bar Williams from testifying 

about her allegations, it is unclear when during the hearing Williams would have had an 
opportunity to do so. 

        50      Although the trial court did refer to its earlier rulings denying domestic 

violence petitions filed by Williams, it is not at all clear that each of the incidents of 
abuse detailed in Williams's motion to modify custody was the subject of a domestic 
violence petition. 

                                                 - 20 -                                            6528
 

----------------------- Page 21-----------------------

Williams to present evidence in support of her allegations of abuse in order to determine 

whether the events were acts of domestic violence.  We remand for the superior court to 

allow and evaluate such evidence. 

       B.      The Best Interests Factors Under AS 25.24.150(c) 

               In making a custody decision based on the best interests of the child, a 

superior court must consider each statutory factor in subsection .150(c) and must discuss 
the factors that it deems relevant to the case before it.51     Though a trial court cannot 

"assign[] disproportionate weight to particular factors while ignoring others," it has 

"considerable discretion in determining the importance of each statutory factor in the 
context of a specific case" and is not required to weigh the factors equally.52 

               Here,   the   superior   court  specifically   discussed   each   factor  under 

AS 25.24.150(c). The court determined that most of the factors did not favor either party, 

but that two factors affected its analysis - the interest in maintaining stability and 
continuity weighed in favor of Barbee under AS 25.24.150(c)(5),53 while the incident of 

domestic     violence   weighed    in  favor   of  awarding    custody   to  Williams    under 
AS 25.24.150(c)(7).54 

               Williams argues that the superior court improperly weighed the stability and 

continuity factor equally against the existence of domestic violence.  Barbee replies that 

the superior court properly discussed and weighed the best interests factors, and that it 

       51     Park v. Park, 986 P.2d 205, 207 (Alaska 1999). 

       52     Barlow v. Thompson, 221 P.3d 998, 1005 (Alaska 2009) (citations omitted). 

       53      AS 25.24.150(c)(5) ("the length of time the child has lived in a stable, 

satisfactory environment and the desirability of maintaining continuity"). 

       54      AS 25.24.150(c)(7) ("any evidence of domestic violence, child abuse, or 

child neglect in the proposed custodial household or a history of violence between the 
parents"). 

                                            - 21 -                                       6528
 

----------------------- Page 22-----------------------

was appropriate for the trial court to focus on the stability and continuity factor in light 

of Williams's planned move to Washington. 

                Because the superior court will have to reevaluate on remand the relative 

weights of the continuity and stability factor and the domestic violence factor in light of 

its findings regarding the alleged domestic violence, we do not reach the issue of whether 

the superior court properly analyzed the factors.  We note, however, that several of our 

recent decisions addressing custody modification where one parent relocates out of state 

emphasize that the interest in stability and continuity described in AS 25.24.150(c)(5) 
cannot categorically favor the non-relocating party purely due to geographic stability.55 

In Blanton v. Yourkowski, we explained our reasoning: 

                A continuity test centered entirely on the child's geographical 
                stability would always favor placing the child with the non- 
                moving parent. Yet our decisions recognize that courts may 
                properly award primary custody to the relocating parent when 
                that   parent   offers   superior   emotional   stability. Thus,   the 
                continuity and stability factor does not preordain the result in 
                such cases; instead, it commands a comprehensive inquiry 
                into each parent's respective ability to maintain stable and 
                satisfactory relations between themselves and the child.[56] 

                We have concluded that stability and continuity "can encompass a multitude 

of factors, including, but not limited to, the relationship with the custodial parent, the 

home provided by the custodial parent, the children's school, the community of friends 

and family, the cultural community, . . . the children's relationship with the non-custodial 

        55      See, e.g., Blanton v. Yourkowski, 180 P.3d 948, 954 (Alaska 2008). 

        56      Id. (quoting Meier v. Cloud, 34 P.3d 1274, 1279 (Alaska 2001)). 

                                                - 22 -                                             6528 

----------------------- Page 23-----------------------

parent . . . [and] stability of place."57   It is the trial court's task "to examine all of these 

factors and determine, in each case, which predominate."58 

        C.      Unsupervised Visitation 

                On appeal, Williams argues that it was inappropriate for the superior court 

to allow Barbee to have unsupervised visitation.  Barbee urges us not to reach this issue 

because Williams did not brief the argument.  While Williams's briefing on appeal is 
likely sufficient under our more liberal standards for pro se litigant pleadings,59 we will 

not decide this issue because Williams did not raise it in the superior court. 

V.      CONCLUSION 

                We REVERSE the award of primary physical and shared legal custody to 

Barbee   and   REMAND   for   the   superior   court   to   make   an   express   finding   regarding 

whether     Barbee    has   a  "history   of   perpetrating    domestic    violence"    pursuant    to 

AS 25.24.150(h).   If the superior court finds that Barbee does have a history of domestic 

        57      Moeller-Prokosch v. Prokosch, 99 P.3d 531, 534 (Alaska 2004) (quoting 

Barrett v. Alguire, 35 P.3d 1, 9 (Alaska 2001)) (remanding for the superior court to "fully 
consider[] the effect of [child's] separation from the non-custodial parent" and explaining 
that "[p]erforming the best interests analysis based on [mother's] assumed move requires 
symmetric consideration of the consequences to [child] both if she leaves with him and 
if she leaves without him"). 

        58      Barrett, 35 P.3d at 9 (upholding a trial court finding that it was in the 

children's best interests to stay in Alaska with their mother because maintaining the 
children's relationships with their school, community of friends and family, cultural 
community, and mother outweighed maintaining the relationship with their father with 
whom they had lived for four and a half years). 

        59      See Peterson v. Ek, 93 P.3d 458, 464 n.9 (Alaska 2004) (concluding that a 

pro se litigant's briefing was adequate to preserve claims where we "could discern his 
legal arguments and [defendant] could reply to them");see also Breck v. Ulmer, 745 P.2d 
66, 75 (Alaska 1987) ("The pleadings of pro se litigants should be held to less stringent 
standards than those of lawyers."). 

                                                - 23 -                                          6528
 

----------------------- Page 24-----------------------

violence,    it  must   address   the  rebuttable   presumption    against   custody   under 

AS 25.24.150(g) before awarding any custody to Barbee. 

                                           - 24 -                                      6528
 
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