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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Weinberger v. Weinmeister (1/20/2012) sp-6641

Weinberger v. Weinmeister (1/20/2012) sp-6641

        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 

JOHN WEINBERGER,                                  ) 
                                                  )   Supreme Court No. S-14036 
                       Appellant,                 ) 
                                                  )   Superior Court No. 3AN-10-07842 CI 
        v.                                        ) 
                                                  )   O P I N I O N 
PATRICE WEINMEISTER,                              ) 
                                                  )   No. 6641 - January 20, 2012 
                       Appellee.                  ) 
                                                  ) 

               Appeal from the Superior Court of the State of Alaska, Third 
               Judicial District, Anchorage, John Suddock, Judge. 

               Appearances:  Rhonda F. Butterfield, and Mitchell K. Wyatt, 
               Anchorage,      for  Appellant.    Patrice   Weinmeister,   pro    se, 
               Anchorage, Appellee. 

               Before:    Carpeneti, Chief Justice, Fabe, Winfree, Christen, 
               and Stowers, Justices. 

               CHRISTEN, Justice. 

I.      INTRODUCTION 

               John Weinberger and Patrice Weinmeister are the parents of a young son. 

After an incident of mutual domestic violence, John obtained an ex parte restraining 

order against Patrice under AS 18.66.110.  John and Patrice both sought custody of their 

son in the separate custody proceeding that followed.           After a one-day bench trial, the 

superior court determined that Patrice had a history of perpetrating domestic violence, 

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but nonetheless awarded her sole legal and primary physical custody.  John appeals the 

custody decision. 

II.     FACTS & PROCEEDINGS 

                John Weinberger and Patrice Weinmeister began living together in early 

2008.    They are the parents of a son born in August 2009.             Both John and Patrice have 

children from previous relationships, and both claim that the other committed domestic 

violence while they resided together. 

                John testified that Patrice physically abused him on multiple occasions in 

May 2010.       He claimed that, in early May, Patrice pushed him off of a sidewalk into 

bushes, on May 12 she slapped him across the face, and on May 17 she shoved him over 

a couch.    John also alleged that during an argument on May 17, 2010, Patrice jumped 
into his car and bit his arm, leaving marks and bruises.1          Patrice denied biting John, but 

she agreed that she reached into the driver's side window or door of his car to grab some 

papers away from him.          She testified that while she was reaching into the car, John 

accelerated the vehicle and she was dragged down the driveway, injuring her legs. 

                It is undisputed that John called the police after the incident that occurred 

in the driveway and Patrice was arrested.            John filed for and was granted an ex parte 

domestic violence protective order the next day. The order directed Patrice not to contact 

John or return to their family home.          It also granted John and Patrice joint temporary 

custody of their son. 

                John initiated an action for custody in the superior court. He also requested 

a hearing on his motion for a long-term protective order under AS 18.66.100(c).  The 

superior   court   extended   the   ex   parte   domestic   violence   protective   order   pending   a 

        1       Photographs   of   the   marks   on   John's   arm   were   admitted   at   the   parties' 

custody trial. 

                                                  -2-                                               6641 

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hearing on the long-term order.   After the hearing, the superior court denied the motion 

for a long-term order but entered a mutual "no contact order" in the parties' custody case. 

                 A one-day custody trial was held in September of 2010.  At the conclusion 

of the trial, the superior court found that Patrice had a history of perpetrating domestic 
violence.2     It   also  found    that  by   accelerating     the  car  and   dragging     Patrice,   John 

committed a single act of domestic violence.  Because the court found that John's actions 

"[fell] short of a single act of domestic violence leading to serious physical injury," the 

court did not conclude that John had a "history of perpetrating domestic violence" under 

AS 25.24.150(h). 

                 The superior court ruled that Patrice rebutted the statutory presumption in 

AS   25.24.150   against   awarding   custody   to   a   parent   with   a   history   of   perpetrating 

domestic violence.        The court's custody order awarded Patrice sole legal  custody until 

the parties' son turns five, at which point the parties will exercise joint legal custody. 

Patrice    was    granted   physical   custody      five  days   per   week;   John    was    granted   two 

overnight visits per week until their son turns three.              John is to receive three nights of 

visitation   after   the   child   turns   three   and,   after   the   parties'   son   turns   four,   the   order 

provides for equal physical custody.  The superior court ordered Patrice to participate in 

a 12-week domestic violence batterers' intervention program and recommended that 
John attend an infant parenting class.3 

                 John appeals. 

        2        Under AS 25.24.150(h), a parent who has either "engaged in more than one 

incident of domestic violence" or caused serious physical injury during a single incident 
of domestic violence has a "history of perpetrating domestic violence." 

        3        John's older child resided with the parties at least part of the time they lived 

together.  Patrice testified at the parties' custody trial about incidents in which she found 
John's parenting skills to be lacking. 

                                                    -3-                                               6641
 

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III.    STANDARD OF REVIEW
 

                The superior court has "broad discretion to determine custody awards so 
long   as   the   determination   is   in   the   child's   best   interests."4 We   "will   not   reverse   a 

superior court's custody determination unless it abused its discretion or its controlling 
factual findings are clearly erroneous."5 

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

in making its custody determination, fails to consider statutorily mandated factors, or 
assigns disproportionate weight to particular factors while ignoring others."6                "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.' "7 

                "The interpretation of a statute is a question of law to which we apply our 

independent   judgment,   interpreting   the   statute   according   to   reason,   practicality,   and 

common sense, considering the meaning of the statute's language, its legislative history, 
and its purpose."8 

        4       Misyura v. Misyura, 242 P.3d 1037, 1039 (Alaska 2010) (quoting Thomas 

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

        5       Id. (quoting Thomas, 171 P.3d at 102). 

        6       Id. 

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

        8       Parson v. State, Dep't of Revenue, Alaska Hous. Fin. Corp., 189 P.3d 1032, 

1036 (Alaska 2008) (citing Parker v. Tomera, 89 P.3d 761, 765 (Alaska 2004)). 

                                                  -4-                                             6641
 

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

IV.     DISCUSSION 

        A.       Patrice Failed To Rebut The Presumption In AS 25.24.150(g). 

                 In AS 25.24.150(g), the legislature established a rebuttable presumption 

against   awarding   custody   to   "a   parent   who   has   a   history   of   perpetrating   domestic 

violence   against   the   other   parent,   a   child,   or   a   domestic   living   partner   .   .   .   ."  As 

explained, "a parent has a history of perpetrating domestic violence . . . if the court finds 

that . . . the parent caused serious physical injury or . . . engaged in more than one 
incident   of   domestic   violence."9      Here,   the   superior   court   found   that   Patrice   had   a 

"history   of   perpetrating   domestic   violence"   because   she   engaged   in   more   than   one 

instance     of  domestic     violence,    but   the  court   also   ruled   that  Patrice   rebutted    the 
presumption   against   awarding   custody   to   her.10       John   contends   the   superior   court's 

determination   that   Patrice   overcame   the   presumption   was   based   on   a   misreading   of 

AS 25.24.150(h).       We agree with John. 

                 Alaska Statute 25.24.150(h) provides: 

                 The presumption [in AS 25.24.150(g)] may be overcome by 
                 a preponderance of the evidence that the perpetrating parent 
                 has   successfully     completed      an   intervention    program      for 
                 batterers, where reasonably available, that the parent does not 
                 engage in substance abuse, and that the best interests of the 
                 child require that parent's participation as a custodial parent 
                 because the other parent is absent, suffers from a diagnosed 
                 mental illness that affects parenting abilities, or engages in 
                 substance abuse that affects parenting abilities, or because of 

        9        AS 25.24.150(h). 

        10       The superior court determined Patrice engaged in more than one incident 

of   domestic   violence   because   she   pushed   John   over   a   couch,   shoved   John   off   of   a 
sidewalk into bushes, and bit John's arm. 

                                                    -5-                                                 6641 

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

                 other    circumstances      that  affect   the  best   interests   of  the 
                 child.[11] 

                 John argues on appeal that the superior court read this statute with "or" 

between the conditions for rebutting the presumption, rather than "and."  In other words, 

rather   than   reading   the   statute   to   require   consideration   of   a   batterers'   intervention 

program (if such a program was available), and a showing that Patrice does not engage 

in substance abuse, and a showing that the child's best interests would be served by 

awarding custody to her, John argues that the superior court interpreted the statute to 

allow the presumption to be overcome if Patrice made any one of the three showings 

identified in the statute.      John argues that Patrice did not overcome the presumption 

against awarding custody to her because she had not completed a batterers' intervention 

program as of the time the superior court entered its custody order.  John argues that the 

superior court's award of custody to Patrice was error. 

                 We agree with John that the path charted in AS 25.24.150(g)-(h) is not 
optional.12   We also agree that the legislature used "and" when it identified the findings 

that must be made under .150(h) to overcome the presumption against awarding custody 

to a person with a "history of perpetrating domestic violence."  Here, the superior court 

found that Patrice had not engaged in substance abuse and that it was in the child's best 

interest for Patrice to be awarded custody.  But there was no finding addressing whether: 

(1) Patrice had "successfully completed an intervention program for batterers"; (2) such 

a program was "reasonably available" to Patrice; or (3) Patrice had otherwise undertaken 

        11       Emphasis added. 

        12       Stephanie F. v. George C.,___ P.3d ___, Op. No.6440, slip op. at 32-33 

(Alaska,   Jan.   20,   2012)    ("path   charted"   language   "only   means   that   the   rebuttable 
presumption cannot be ignored by the superior court, [but] it does not speak to the proof 
that is needed to rebut the statutory presumption," and holding completion of a batterers' 
intervention program is not the only way to rebut the presumption in AS 25.24.150(g)). 

                                                    -6-                                              6641
 

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

steps that allowed her to rebut the statutory presumption against awarding custody to 
her.13   The superior court ordered Patrice to complete a "12 week domestic violence 

batterer's intervention program."          We find no error in this order,14 but at the time the 

court entered its custody order, Patrice apparently had not taken steps to satisfy .150(g)'s 

requirement that her history of domestic violence be addressed in order to overcome the 

presumption   against   awarding   custody   to   her.         Because   Patrice   failed   to   rebut   the 
statutory presumption, the superior court erred by awarding custody to Patrice15 and the 

custody order must be reversed.16 

        13       Cf. id. 

        14       John argues the superior court abused its discretion by failing to require 

Patrice to complete a batterers' intervention program approved by the Department of 
Corrections.     But John points to no authority requiring the superior court to order a 
program   approved   by   the   Department   of   Corrections   upon   the   entry   of   an   ex   parte 
protective order under AS 18.66.110 or as a condition of a custody order.                      John cites 
22 Alaska Administrative Code (AAC) 25.010 (1998), which requires Department of 
Corrections approval when batterers' programs are "imposed as a condition of probation 
under     AS    12.55.101(a),     as  a  condition     of  a  [long   term]    protective    order   under 
AS 18.66.100(c), or as a condition of parole under AS 33.16.150(f)."                     But Patrice was 
not   on   probation   or   parole   and   John's   request   for   a   long-term   protective   order   was 
denied. The superior court ordered Patrice to complete a batterers' intervention program 
pursuant   to   AS   25.24.150(c),   not   AS   18.66.100(c).        We   find   no   error   in   the   order 
requiring Patrice to attend a 12-week batterers' intervention program. 

        15       See  Wee v. Eggener, 225 P.3d 1120, 1125 (Alaska 2010) ("[W]ithout a 

finding that [the parent who has a history of perpetrating domestic violence] overcame 
the presumption against custody, [that parent] has no right to any type of custody."). 

        16       John   makes   the   alterative   argument   that   the   superior   court   incorrectly 

applied the supervised visitation standard to make the custody determination.  Because 
we reverse the custody order on other grounds, we do not reach the supervised visitation 
argument. 

                                                    -7-                                              6641
 

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

        B.	      It Was Error To Apply The Tender Years Doctrine When Assessing 
                 The Child's Best Interests. 

                 John also argues that the superior court abused its discretion by relying on 

the   "tender   years   doctrine"   in   its   custody   determination.     Patrice   counters   that   the 

superior court properly assessed all relevant factors when it evaluated the child's best 

interests.    Having   reviewed   the   record,   we   agree   with   John   that   the   superior   court 

impliedly invoked the tender years doctrine; it was error to do so. 

                 In Faro v. Faro, we defined the tender years doctrine as the presumption 
that, "other factors being equal, a mother will be given preference for custody."17                      In 

Johnson   v.   Johnson   we   abandoned   the   use   of   the   tender   years   doctrine   in   custody 

determinations, explaining "[t]he real issue is not the sex of the parent but which parent 
will do better in raising the children."18         Alaska Statute 25.24.150(c) instead requires 

courts to examine the child's best interests without regard to the gender of the parent 

seeking custody or visitation. 

                 In   this  case,  the   record   shows     the  superior    court  considered     several 

pertinent     factors   to  determine     the  best   interests   of  the  child   in  accordance      with 

AS 25.24.150(c).        But some of the superior court's comments signal that it improperly 
favored Patrice over John because Patrice is the child's mother.19 

        17       579 P.2d 1377, 1379 n.3 (Alaska 1978) (citing Wetzler v. Wetzler, 570 P.2d 

741, 742 (Alaska 1977)). 

        18       564 P.2d 71, 75 (Alaska 1977) (quoting In re Marriage of Bowen, 219 

N.W.2d 683 (Iowa 1974)). 

        19       For example, the superior court stated: 

                 [Patrice]   has   shown   a   capability   and   desire   to   meet   those 
                 needs because, you know, let's face it, it's partly genetic and 
                 biological and . . .[t]hey   get kicked in the tummy and . . . 
                                                                                           (continued...) 

                                                    -8-	                                             6641
 

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                We   reaffirm   our   precedent   holding   that   a   presumption   in   favor   of   the 
mother is an improper basis on which to award custody.20               On remand, a custody order 

should be entered without consideration of the tender years doctrine.21 

        C.	     The Superior Court Did Not Fail To Consider The Domestic Violence 
                Exception In AS 25.24.150(c)(6). 

                John argues that the superior court abused its discretion by failing to apply 

the domestic violence exception under AS 25.24.150(c)(6). Patrice argues that the court 

properly weighed all relevant factors under AS 25.24.150(c), that the court found both 

parties   committed   domestic   violence,   and   that   the   domestic   violence   exception   also 

applied to both parties.     We agree with Patrice. 

                In determining a child's best interests, the superior court must consider all 
the statutory factors set out by the legislature in AS 25.24.150(c).22               We review "the 

adequacy of findings for 'whether they give a clear indication of the factors considered 

        19(...continued) 

                bond in a primally different way sometimes than men and 
                she's got that desire and bond and often, men have less of a 
                bond and they have to come to it and they do to a greater or 
                lesser extent. 

The superior court also stated: 

                [Patrice] desperately loves this little boy and so has to take 
                care of him and [John] loves the little boy too in a different 
                way, in an appropriate way . . . the appropriate male love by 
                a person who is not the primary psychological parent. 

        20      Johnson, 564 P.2d at 75. 

        21      John also contends that the superior court violated his due process rights 

by discriminating against him based on gender.               We take this gender-discrimination 
claim to be part of his tender years claim and address these claims jointly. 

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

                                                  -9-	                                            6641
 

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important by the trial court or allow us to determine from the record what considerations 
were involved.' "23     "The superior court need not discuss each of the factors; it must only 

address those that are 'actually relevant in light of the evidence presented.' "24 

                The domestic violence exception under AS 25.24.150(c)(6) requires that 

where a parent "engaged in domestic violence," and continuing a relationship with that 

parent will "endanger the health or safety of either the parent or the child," the court shall 

not consider the other parent's "willingness and ability" to "facilitate and encourage a 

close and continuing relationship between the [perpetrating] parent and the child."  This 

exception does not require a finding that a parent has "a history" of domestic violence 

as defined by AS 25.24.150(g).          Rather, the exception applies anytime the court finds 

that a parent "engaged in domestic violence" and continuing a relationship with that 

parent will "endanger the health or safety of either the parent or the child." 

                As noted, the superior court found that John committed domestic violence 

"by   accelerating   the   vehicle   when   [Patrice]   was   attempting   to   get   papers   out   of   the 

vehicle . . . caus[ing] physical damage to her legs."           The superior court also found that 

Patrice     had     a   history     of   perpetrating      domestic      violence.       Accordingly, 

AS 25.24.150(c)(6) potentially applied to both parents, but the court did not find that 

continuing the relationship with either parent would "endanger the health or safety of 

either the parent or the child."        Contrary to John's argument that this exception was 

overlooked, the superior court expressly considered AS 25.24.150(c) and found that both 

parties "match each other in [their] weakness" at fostering a relationship with the other 

        23      Id. (quoting Borchgrevink v. Borchgrevink, 941 P.2d 132, 137 (Alaska 

1997)). 

        24      Id.   at   102-03   (quoting  Virgin   v.   Virgin,   990   P.2d   1040,   1045   (Alaska 

1999)). 

                                                  -10-                                               6641 

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

parent.   The   record   supports   this   finding.  We   see   no   error   in   the   superior   court's 

consideration of AS 25.24.150(c)(6). 

        D.	     John Was Not Denied An Opportunity To Object To The Superior 
                Court's Findings Of Fact And Conclusions Of Law. 

                John argues that he was denied due process because he was not allowed five 

days to object to the superior court's proposed findings of fact and conclusions of law 

before they were entered.       The record supports John's contention that he did not have 

five days to object to the proposed findings and conclusions - as required by Civil Rule 

78(b) - but the superior court did allow the parties to submit written objections and 

argue     their  objections    at   a  separate    hearing.    Moreover,      we    have   held    that 

"[n]on-compliance with subdivisions (a) and (b) of Rule 78 does not in itself require us 

to reverse the judgment below and order it to be set aside.  The appellant must first show 
that [he] has been prejudiced in some substantial way."25            Because John was given an 

opportunity to object to the superior court's findings and conclusions after they were 

entered, and because he did not show that he was prejudiced by the failure to permit a 

five-day objection period before the findings and conclusions were entered, we discern 

no due process violation. 

V.	     CONCLUSION 

                We REVERSE the custody determination and REMAND for proceedings 

consistent with this opinion. 

        25      Anchorage v. Chugach Elec. Ass'n , 394 P.2d 673, 675 n.3 (Alaska 1964) 

(quoting Briggs v. Kelly, 376 P.2d 715, 717 (Alaska 1962)) (internal citations omitted). 

                                                 -11-	                                            6641 
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