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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Heather W. v. Rudy R. (4/20/2012) sp-6666

Heather W. v. Rudy R. (4/20/2012) sp-6666

        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 



HEATHER W.,                                    ) 
                                               )       Supreme Court No. S-14332 
                        Appellant,             ) 
                                               )       Superior Court No. 3AN-02-05469 CI 
        v.                                     ) 
                                               )       O P I N I O N 
RUDY R.,                                       ) 
                                               )       No. 6666 - April 20, 2012 
                        Appellee.              ) 
                                               ) 



                Appeal from the Superior Court of the State of Alaska, Third 

                Judicial District, Anchorage, Sen K. Tan, Judge. 



                Appearances:      Kara A. Nyquist, Anchorage, for Appellant. 

                Maryann      E.  Foley,    Law    Office   of  Maryann     E.   Foley, 

                Anchorage, for Appellee. 



                Before:     Carpeneti,     Chief    Justice,  Fabe,    Winfree,    and 

                Stowers, Justices. 



                FABE, Justice. 



I.      INTRODUCTION 



                Rudy R. moved to modify the agreement through which he and Heather W. 



share    50-50   custody    of   their  daughter.  He   argued    that   recent   legal   troubles  and 



instability in Heather's life amount to changed circumstances that required modifying the 



custody agreement in the child's best interests.  The superior court agreed.  Heather now 


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appeals, arguing that the evidence does not show that any of her changed circumstances 



affected her child.   The superior court also found that it was in the child's best interests 



for   Rudy   to   have   primary   physical   custody.   Heather   argues   this   was   an   abuse   of 



discretion because the trial court considered impermissible character evidence, gave 



disproportionate weight to some factors while ignoring others, and refused to consider 



evidence of past domestic violence between the parties. 



                We conclude that the superior court did not abuse its discretion by finding 



changed circumstances and did not assign disproportionate weight to certain statutory 



best   interest   factors.  But   because   the   issue   of   domestic   violence   has   never   been 



adjudicated, we remand for an evidentiary hearing to determine whether Rudy has a 



history    of  domestic     violence,   and,   if  so,  whether    he  has   rebutted   the   statutory 



presumption against an award of custody. 



II.     FACTS AND PROCEEDINGS 



        A.      Background Facts 



                Heather   W.   and   Rudy   R.   have   one   daughter,   born   in   May   2000.     In 



September 2002 Heather and Rudy stipulated to a custody agreement whereby Heather 



had primary physical custody of their daughter.            Shortly thereafter, when the child was 



two or three, the parties began an informal arrangement in which they shared physical 



custody week on-week off.          In 2006 the parties formally stipulated to modifying their 



custody   agreement   to   reflect   the   informal,   alternate-week      schedule   they   had   been 



following. 



        B.      Motion To Modify Custody 



                In   July   2010    Rudy    filed  a  motion     to  modify    the  parties'   custody 



arrangement. Rudy argued that there had been "a material change of circumstances" that 



justified modifying the custody agreement and that it was now in his daughter's best 



interests that Rudy have primary physical custody.  Rudy argued that several factors in 



                                                  -2-                                            6666
 


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Heather's life constituted a material change of circumstances that warranted modifying 



the custody agreement, including:           Heather's criminal charges for driving under the 



influence and driving with a suspended license in November 2009 and for driving with 



a suspended license in April 2010; the revocation of Heather's license; the bad behavior 



of people close to Heather; and the instability of Heather's living situation. 



                Heather opposed the requested modification. She argued that there had not 



been a material change in her circumstances and that even if Rudy's allegations were 



true, he had failed to show how those allegations affected the child. 



                The superior court held a custody modification hearing in February 2011. 



At   the   evidentiary   hearing,   the   testimony   concentrated   largely   on   Heather's   alleged 



shortcomings as a parent.  Heather was questioned about the circumstances surrounding 

her DUI charge.1      Throughout the hearing, Heather and others were questioned about her 



drinking, and Rudy suggested in closing that Heather had a drinking problem. 



                At the hearing, Rudy also emphasized two instances of concern between 



Heather     and   men    with   whom     she  was   romantically     involved.    In    one  instance, 



immediately preceding her DUI charge, Heather and then-boyfriend Adam returned to 



Heather's house after several drinks when Adam began "destroying [Heather's] house." 



Heather testified that she was "absolutely terrified," and felt compelled to drive to a 



nearby gas station to call the police.      In another incident in October 2008, police were 



called to the home Heather shared with then-boyfriend Charles. Charles was intoxicated 



and had a gun.  Heather, who was also intoxicated, refused a police officer's commands 



to move away from Charles, and was eventually handcuffed, though not arrested. 



        1       Heather pleaded guilty to reckless driving. 



                                                  -3-                                              6666 


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                Both Heather and the citing police officer testified about the charge for 

driving with a license suspended/revoked.2          Heather claimed that she needed to drive her 



daughter to the emergency room because of a high fever, but the superior court found her 



story less than credible. 



                Heather also testified about her various residences during the preceding five 



years.    In   her   affidavit   she   stated   that   she   had   lived   in   four   residences,   but   Rudy 



presented evidence that Heather may have lived at another address and been untruthful 



about the dates of her various residences. 



                Throughout the hearing, Heather argued that her daughter was not affected 



by Heather's alleged conduct, pointing out that her daughter was not present during the 



DUI or the incidents involving Adam and Charles.   Heather maintained that her lack of 



a driver's license had not affected her daughter's attendance in school or extracurricular 



activities.  Heather argued that she had lived in her current address for over a year and 



that the child had a stable home life and good home. 



                Finally, Heather's credibility was at issue during the hearing.  Rudy called 



two witnesses to support his contention that Heather had provided the court with two 



forged letters and suggested that someone had subsequently removed one of the letters 



from the court file. The superior court found that some of Heather's explanations for her 



behavior were less than convincing. 



                Following      the  three-day    hearing,    the  superior   court   issued   an   order, 



supported by findings of fact and conclusions of law, awarding primary physical custody 



to Rudy.    Heather filed a motion for reconsideration, which was denied, and she now 



appeals. 



        2       This case was ultimately dismissed. 



                                                   -4-                                               6666 


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III.    STANDARD OF REVIEW 



                "Whether the superior court applied the correct legal standard is a question 



of law that we review de novo, 'adopting the rule of law that is most persuasive in light 



of precedent, reason, and policy.'           Trial courts have broad discretion in determining 

whether a proposed child-custody modification is in the child's best interests."3              We will 



reverse    a  trial  court  only   when    that  court  has   "abused    its  discretion  or  when    its 

controlling   findings   of   fact   were   clearly   erroneous."4   "An   abuse   of   discretion   .   .   . 



occurr[s]     if  the  superior   court  considers    improper     factors   in  making    its  custody 



determination, fails to consider statutorily mandated factors, or assigns disproportionate 

weight   to   particular   factors   while   ignoring   others."5   "In   the   context   of   a   custody 



modification decree, this analysis must be applied to assess whether the superior court 

was justified in changing the previous custody determination."6                "Factual findings are 



clearly erroneous if, on the basis of the entire record, we are 'left with a definite and firm 



conviction . . . that a mistake has been made, even though there may be evidence to 

support the finding.' "7 



IV.     DISCUSSION 



                Alaska Statute 25.20.110(a) provides that "[a]n award of custody of a child 



or visitation with the child may be modified if the court determines that a change in 



        3       Rego   v.   Rego ,   259   P.3d   447,   452   (Alaska   2011)   (quoting McQuade   v. 



McQuade , 901 P.2d 421, 423 n.3 (Alaska 1995)). 



        4       McLane v. Paul , 189 P.3d 1039, 1042 (Alaska 2008). 



        5       Borchgrevink v. Borchgrevink , 941 P.2d 132, 134 (Alaska 1997). 



        6       Gratrix v. Gratrix, 652 P.2d 76, 80 (Alaska 1982). 



        7       Barrett v. Alguire , 35 P.3d 1, 5 (Alaska 2001) (quoting Jenkins v. Handel , 



10 P.3d 586, 589 (Alaska 2000)). 



                                                  -5-                                             6666
 


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circumstances requires the modification of the award and the modification is in the best 



interests of the child." Heather makes two sets of arguments, the first of which claim that 



the trial court erred in finding a material change in circumstances, and the second of 



which   claim   that   the   trial   court   abused   its   discretion   in   applying   the   statutory   best 



interests of the child factors.      We address these arguments in turn. 



        A.	      The    Superior      Court    Did    Not   Abuse     Its  Discretion     In   Finding     A 

                 Material Change Of Circumstances. 



                 As a threshold matter, a party seeking a modification of custody must make 

a prima facie showing that a substantial change in circumstances has occurred.8   "The 



required     change    in  circumstance       must   be   significant    or  substantial,   and    must   be 



demonstrated relative to the facts and circumstances that existed at the time of the prior 

custody order that the party seeks to modify."9               Further, to be material, a change in 



circumstances must "affect[] the children's welfare."10             We require a movant to clear this 



threshold in order "to maintain continuity of care and to avoid disturbing and upsetting 

the child with repeated custody changes."11           We have expressed concern that "[c]hildren 



.   .   .   not   be   shuttled   back   and   forth   between   .   .   .   parents   unless   there   are   important 

circumstances justifying such change as in their best interests and welfare."12 



                 The superior court found a substantial change in circumstances, concluding: 



                 The   things   that   constitute   a   change   of   circumstances   are 

                 [Heather's] DUI case which was pled out, the restrictions on 



        8	       See id. at 6. 



        9        Jenkins , 10 P.3d at 589 (internal citations omitted). 



        10       Harrington v. Jordan , 984 P.2d 1, 3 (Alaska 1999). 



        11       McLane v. Paul , 189 P.3d 1039, 1043 (Alaska 2008). 



        12       Nichols v. Nichols , 516 P.2d 732, 735 (Alaska 1973). 



                                                    -6-	                                              6666
 


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                her driver's license, there is the stability issue, including at 

                least    two    incidents    of  potential    domestic     violence     in 

                [Heather's] relationships, and the deterioration in the parents' 

                relationship.[13] 



                Heather argues that the superior court erred in finding a material change in 



circumstances. Her argument presents a mixed question of fact and law:  She argues that 



a change in circumstances can only be found material if the change affects the child and 



that the superior court erred because Rudy did   not demonstrate a nexus between his 



allegations against Heather and any effect on the child.             Rudy responds that "[t]here is 



no . . . Alaska case law that prohibits a trial court from finding that a series of events can 



constitute a substantial change of circumstance." 



                Rudy is correct.      When reviewing whether a trial court was justified in 



finding a change in circumstances, we do not parse each alleged factual assertion of 



change, but instead look to see whether the circumstances in the aggregate establish a 

change of circumstances.14        The superior court certainly did not abuse its discretion in 



taking into account all of the circumstances raised in this case in concluding that there 



had been a substantial change of circumstances. Heather's DUI arrest,  subsequent arrest 



for driving with a suspended license, and conduct with her boyfriends - one of which 



involved   domestic   violence   and   another   of   which   involved   a   gun   -   demonstrate   a 



pattern of conduct that presents a substantial change of circumstances. 



                Although Heather argues that none of these events were shown to affect her 



daughter   because   her   daughter   was   not   present   to   witness   them,   the   superior   court 



        13      In the court's oral findings of fact from which the written findings are 



adapted, the court calls the DUI charge the "[m]ost obvious" change of circumstances. 



        14      See Nichols v. Mandelin , 790 P.2d 1367, 1372 (Alaska 1990) (concluding 



that "in the aggregate, [several indicia of a mother's overall maturation] constitute a 

substantial change in circumstances"). 



                                                   -7-                                             6666
 


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characterized this argument as "way too narrow."             The superior court was well within 



its   broad   discretion   to  find   that  such   bad  behavior    was    a  substantial   change    of 

circumstances affecting the child.15 



        B.	     The Superior Court Did Not Err In Its Analysis And Application Of 

                The Best Interest Factors. 



                Once   the   trial   court   has   found  a   substantial   change   in   circumstances 



justifying   custody   modification,   it   must   then   determine   whether   modification   of   the 

arrangement is in the best interests of the child.16        In making a determination as to best 



interests,    a  court   is  required    to   consider    the   statutory   factors   enumerated      in 

AS 25.24.150(c)17 and, if there is a history of domestic violence by a parent, to apply the 



        15      As we have noted before, "[a] child need not see domestic violence in order 



to be exposed to it."  Iverson v. Griffith , Mem. Op. & J. No. 1260, 2006 WL 2578692, 

*4 n.11 (Alaska, Sept. 6, 2006) (quoting Rachel L. Melissa, Note, Oregon's Response 

to the Impact of Domestic Violence on Children , 82 OR . L. REV . 1125, 1128-29 (2003)). 

Here, Heather did not take action to remove herself and her child from the potentially 

harmful environments. 



        16	     AS 25.20.110(a). 



        17	     AS 25.24.150(c) provides: 



                In determining the best interests of the child the court shall 

                consider 



                (1)      the physical, emotional, mental, religious, and social 

                needs of the child; 



                (2)      the capability and desire of each parent to meet these 

                needs; 



                (3)      the child's preference if the child is of sufficient age 

                and capacity to form a preference; 



                (4)	     the love and affection existing between the child and 

                each parent; 

                                                                                       (continued...) 



                                                  -8-	                                           6666
 


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presumption under AS 25.24.150(g).18 



                 Heather argues that the trial court abused its discretion in three separate 



ways in applying the statutory factors. First, Heather argues that the court impermissibly 



relied on evidence of her lifestyle that did not affect her daughter.               Second, she argues 



that the trial court assigned disproportionate weight to certain factors while ignoring 



        17(...continued) 



                 (5)     the   length   of   time   the   child  has   lived  in  a  stable, 

                 satisfactory environment and the desirability of maintaining 

                 continuity; 



                 (6)     the willingness and ability of each parent to facilitate 

                 and encourage a close and continuing relationship between 

                 the other parent and the child, except that the court may not 

                 consider this willingness and ability if one parent shows that 

                 the   other   parent    has   sexually    assaulted    or   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)     any   evidence   of   domestic   violence,   child   abuse,   or 

                 child neglect in the proposed custodial household or a history 

                 of violence between the parents; 



                 (8)     evidence that substance abuse by either parent or other 

                 members of the household directly affects the emotional or 

                physical well-being of the child; 



                 (9)     other factors that the court considers pertinent. 



        18       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. 



                                                    -9-                                              6666
 


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others.  Finally, she argues that the court failed to take into consideration Rudy's history 



of domestic violence. 



                1.	     The superior court did not impermissibly consider evidence of 

                        Heather's character unrelated to her daughter's welfare. 



                As Heather points out, "[a] parent's lifestyle, habits or character is only 



relevant as it may be shown to negatively affect the child or the [parent's] parenting 

ability."19  Heather argues that the superior court impermissibly relied on evidence of her 



"lifestyle,   habits,   or   character"   by   focusing   on   her   DUI   charge,   license   restrictions, 



frequent moving, and relationship troubles, particularly without any direct evidence that 



these adversely impacted her daughter. 



                Rudy responds that Heather's behavior is covered under numerous statutory 



factors.  The DUI charge, he argues, and the fact that Heather was intoxicated when the 



police were called on   the incidents involving   Adam   and   Charles, goes   to   substance 



abuse, one of the statutory factors.       He argues that the frequent moves can properly be 



considered under the stability factor.         Finally, he argues that Heather's "relationships 



with violence" involving Adam and Charles could properly be considered under the 



domestic violence factor. 



                In Craig v. McBride, we concluded that residential stability was a proper 

consideration in the best interest analysis.20       It was therefore not an abuse of discretion 



for the superior court to consider this evidence. 



                Similarly, the superior court pointed to Heather's relationship history as 



evidence      of  instability.   The    court   said   it  had  "concerns     regarding    [Heather's] 



relationship with [Charles].        Her relationship with [Adam] is unclear.           The court has 



        19      See Bonjour v. Bonjour , 566 P.2d 667, 668-69 (Alaska 1977). 



        20      639 P.2d 303, 305 (Alaska 1982). 



                                                  -10-                                              6666 


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concerns about both geographic and emotional stability."  But because a parent's history 



of relationships marked by violence speaks to the statutory factor of "the length of time 



the   child   has   lived   in  a  stable,  satisfactory    environment      and    the  desirability   of 

maintaining continuity,"21  the superior court did not abuse its discretion in considering 



this evidence. 



                Further, the court's reference to Heather's relationship history was only 



mentioned in passing under the stability factor.  The superior court addressed Heather's 



questionable   decision-making   with   her   boyfriends   in   more   detail   in   addressing   her 



capability of meeting the needs of her child.              The court found that Heather's having 



continued living with Charles after he was arrested for drunkenly waiving a gun and her 



return   to   a   house   where   Adam   was   having   a   violent   outburst   (and   potentially   her 



resumption   of   a   relationship   with   Adam)   were   evidence   of   her   poor   judgment   that 



suggested a potential inability to meet her daughter's needs, a statutory factor under the 



best interest analysis.  Heather makes no argument that this reliance was impermissible 



or erroneous, and it appears the superior court properly considered Heather's relationship 



history as it related to her daughter. 



                2.	      The superior court did not assign disproportionate weight to 

                         certain factors. 



                Heather also argues that the superior court abused its discretion by giving 



insufficient weight to certain factors, while focusing too heavily on others. 



                First, she argues that the trial court failed to properly consider her capability 



and   desire   to   meet   her   daughter's   needs.   To   support   her   argument,   she   points   to 



evidence that she was involved in her daughter's schooling, that she met her daughter's 



basic needs, and that she successfully co-parented with Rudy.                  But the superior court 



        21      AS 25.24.150(c)(5). 



                                                   -11-	                                              6666 


----------------------- Page 12-----------------------

emphasized that due to Heather's lack of credible testimony as to what was going on in 



her life, it did not really have a good idea of Heather's capability in meeting her child's 



needs.      Further,   the   trial   court   noted   that   Heather's   choice   to   continue   to   live   with 



Charles after the gun incident, as well as her actions on the night of her charge for 



driving with a suspended license, raised concerns about her judgment as a parent.  In 



short, the trial court did not, as Heather argues, give insufficient weight to this statutory 



factor; the court simply disagreed with Heather as to how well she met it.                     Trial courts 



are given broad deference to make these determinations, and here the trial court did not 



abuse that discretion. 



                 Heather also argues that the trial court abused its discretion by failing to 



give sufficient weight to the bond between her and her daughter.                    The trial court only 



briefly addressed this factor, but it did say that there was "love and affection" between 



the child and both of her parents, suggesting that the factor did not cut toward one parent 



or another.     This issue was not in dispute during the trial.            A trial court acts within its 



discretion when it summarily deals with a factor that is not in dispute and that does not 



favor one parent over the other. 



                 Heather   also   argues   that   the   trial   court   abused   its   discretion   by   giving 



insufficient weight to the importance of maintaining continuity.  A modification decision 



effectively   takes   this   factor   into   consideration   with   its   threshold   question   whether 



circumstances were changed sufficiently to warrant modification.  Because the superior 



court did not abuse its discretion in finding a substantial change of circumstances, there 



is   no   basis   for   concluding   that   it   abused   its   discretion   in   finding   that   instability   in 



Heather's life weighed in favor of awarding custody to Rudy, despite the fact that it 



represented a change in the status quo. 



                 Finally,   Heather   argues   that   the   superior   court   gave   undue   weight   to 



considerations of Heather's credibility.            The court emphasized what it believed to be 



                                                    -12-                                               6666
 


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

Heather's lack of credibility.  In its written findings of fact, the superior court found that 



"[t]he real issue in this case is that it is very difficult . . . to gauge exactly what is going 



on in [Heather's] life.        The court has concerns about [Heather's] credibility . . . .  The 



court can't believe what [Heather] is saying . . . ."   Heather argues that this emphasis on 



her credibility was      improper because "[a] parent's character is only relevant as it may 



be   shown   to   negatively   affect   the   child   or   the   mother's   parenting   ability."   But   the 



superior court did not frame the credibility issue as a character flaw that weighed against 



granting     Heather     custody.     In   fact,  the  superior    court   expressly     declined    Rudy's 



invitation to address Heather's credibility as a separate factor, saying, "I don't take away 



children because I think parents have lied on the stand.                Never have done that.        Never 



will."    Instead, the superior court focused on how Heather's lack of credibility made it 



difficult   for   the   court   to   evaluate   what   was   actually   going   on   in   her   life   and   raised 



concerns about her judgment as a parent.               The court observed that Heather's lack of 



credibility left "a vacuum of information" for the court to determine Heather's capability 



in meeting her daughter's needs, while the evidence showed that Rudy "appear[ed] to 



have a very stable life."   The court also noted that Heather's lack of credibility "call[ed] 



into question [her] judgment as a parent."              This is not the sort of irrelevant character 

evidence we have previously deemed improper for the trial court to consider.22 



        22       See Craig v. McBride, 639 P.2d 303, 305 (Alaska 1982) (concluding that 



the    trial  court's    references    to   a  mother     having    borne     a  child   out   of  wedlock 

impermissibly affected custody decision); Bonjour v. Bonjour, 566 P.2d 667 (Alaska 

1977)      (concluding      that  the   trial  court   had    impermissibly       relied   on   a  mother's 

cohabitation in determining the child's best interests). 



                                                    -13-                                               6666
 


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

                 3.	     Failing     to   consider      domestic     violence     and     the   statutory 

                         presumption was an abuse of discretion. 



                 Heather finally argues that the superior court erred by failing to consider 



Rudy's history of domestic violence.   Heather argues both that the superior court failed 



to consider Rudy's history of domestic violence in the best interest analysis as required 



by AS 25.24.150(c)(7) and that the superior court failed to apply the presumption against 



awarding   custody   to   a   parent   with   a   history    of   domestic   violence    as  required    by 



AS 25.24.150(g).   Rudy responds that he has presented evidence sufficient to overcome 



this rebuttable presumption.   Rudy also seems to suggest that Heather had no subjective 



or objective concerns about continued domestic violence when she entered the stipulated 



custody agreement and that thus Rudy's history is now irrelevant to the issue of custody. 



                 Sometime in 2001, while they were still together, Rudy was convicted of 



assaulting Heather.       Heather testified that this domestic violence was the reason she 



initially   took   physical   custody   of   her   daughter   and   that   it   was   only   after   Rudy   had 



completed "anger management" that the two began the informal arrangement that they 



formalized with the 2006 modification stipulation.               Rudy testified that he completed a 



six-month domestic violence intervention at the Men's Center for Change in Cordova, 



but it appears that no court has made a finding as to (1) whether Rudy has a history of 



domestic violence as defined by AS 25.24.150(h), or (2) whether Rudy's completion of 



this    program       satisfied    his   burden      of   overcoming        the    presumption       under 

AS     25.24.150(h).23    Both     the  original   2002    custody     order   and   the  2006    custody 



        23       AS 25.24.150(h) provides: 



                 A   parent   has   a   history   of   perpetrating   domestic   violence 

                under (g) of this section 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 

                                                                                           (continued...) 



                                                   -14-	                                             6666
 


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

modification were entered by stipulation. 



                At the most recent trial, the parties' first contested custody proceeding, the 



superior court refused to consider Rudy's domestic violence.  When Heather's attorney 



questioned Rudy about the domestic violence incident, the trial court indicated that it 



would not consider evidence of an assault that occurred before the parties' 2006 custody 



modification and that collateral estoppel applied to Heather's claim of assault.                    In its 



written findings of fact, the court noted that Heather had asked the court to consider the 



episode   of   domestic   violence   perpetrated   by   Rudy,   but   that   "[t]here   ha[ve]   been   no 



further episodes or threats of violence between the parents since the 2001 episode."                    In 



its oral findings, the court elaborated a bit, saying "[t]his event occurred well before the 



parents' agreement to share custody in 2006." 

                We addressed a very similar situation in McAlpine v. Pacarro .24                  In that 



case, the father had assaulted the mother, and the parties had entered into a stipulated 



custody agreement granting the mother primary legal custody. The parties subsequently 

modified that custody arrangement, though the mother retained physical custody.25  The 



father   later   moved   for   a   modification   of   custody   and   was   granted   primary   physical 



        23(...continued) 



                in    more    than   one    incident   of   domestic     violence.    The 

                presumption 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 . . . . 



        24      262 P.3d 622 (Alaska 2011). 



        25      Id. at 623. 



                                                   -15-                                             6666
 


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

custody.26     In   2009,   ten   years   after   the   initial   assault,   the   mother   petitioned   for   a 



modification of custody and asked the trial court to determine the legal effect of the 

father's previous assault.27      The trial court refused to hear evidence of domestic violence 



on the ground that anything that had happened prior to the most recent custody order was 

barred by collateral estoppel and res judicata.28            We concluded that collateral estoppel 



did not bar a consideration of evidence of previous domestic violence in a custody case 



where the issue was "not adequately addressed at the initial custody determination or 

subsequent proceedings."29           In this case, it does not appear that evidence of Rudy's 



domestic violence has ever been heard in a custody proceeding, and thus the superior 

court erred in refusing to consider evidence of domestic violence.30 



                 Accordingly, we remand this case to the superior court for an evidentiary 



hearing solely on the issues whether Rudy has a history of domestic violence under 



AS 25.24.150(g), and, if so, whether Rudy has successfully rebutted the presumption of 



AS 25.24.150(h). 



        26       Id. at 624. 



        27       Id. 



        28       Id. 



        29       Id. at 626. 



        30       In   his   brief,   Rudy   says   that   "McAlpine   is   distinguishable"   because   the 



mother     proceeded      pro   se,   while  Heather    has   had   counsel   throughout   her      custody 

proceedings.       Although   in  McAlpine        we   emphasized   that   "[t]aking   prior   domestic 

violence     into   consideration      is  particularly    important    in   cases   where    a  settlement 

agreement   deciding   custody   was   made   by   pro   se   parties   with   a   history   of   domestic 

violence," this does not mean that the rule from McAlpine applies only when one or both 

parties are pro se.     Id. at 626. 



                                                    -16-                                               6666
 


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

V.      CONCLUSION 



                For the foregoing reasons, we conclude that the superior court did not abuse 



its discretion by finding a substantial change of circumstances, did not rely on improper 



character   evidence,   and   did   not   assign   disproportionate   weight   to   the   statutory   best 



interest factors.  Because the superior court failed to consider evidence of past domestic 



violence,   we   REMAND   for   an   evidentiary   hearing   to   consider   whether   Rudy   has   a 



history of domestic violence and, if so, whether he has rebutted the presumption against 



awarding custody to a parent with a history of domestic violence. 



                                                  -17-                                            6666
 

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