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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Harris v. Governale (11/1/2013) sp-6839

Harris v. Governale (11/1/2013) sp-6839, 311 P3d 1052

         Notice:  This opinion is subject to correction before publication in the PACIFIC  REPORTER .  

         Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

         303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, e-mail  

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



                   THE SUPREME COURT OF THE STATE OF ALASKA  



KIMBERLY Y. HARRIS,                                       )  

                                                          )    Supreme Court No. S-14808  

                           Appellant,                     )  

                                                          )    Superior Court No. 3AN-06-11476 CI  

         v.                                               )  

                                                          )    O P I N I O N  

JOHN G. GOVERNALE,                                        )  

                                                          )   No. 6839 - November 1, 2013  

                           Appellee.                      )  

                                                          )  



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

                                                                  

                  Judicial District, Anchorage, Eric A. Aarseth, Judge.  



                  Appearances: Robin A. Taylor, Law Office of Robin Taylor,  

                                                                                 

                  Anchorage,  for  Appellant.             John  G.  Governale,  pro  se,  

                                                                        

                  Anchorage, Appellee.  



                  Before:  Fabe, Chief Justice, Winfree, Maassen, and Bolger,  

                  Justices.  [Stowers, Justice, not participating.]  



                  MAASSEN, Justice.  



I.       INTRODUCTION  



                  Kimberly  Mendez  (formerly  Kimberly  Harris),  planning  a  move  from  

                                                                         



Alaska  to  Florida  with  her  husband,  sought  an  order  granting  her  primary  physical  



custody of her daughter.  The superior court awarded primary physical custody instead  

                                                                                                 



to  the  girl's  father,  John  Governale,  who  remains  in  Alaska.    Kimberly  appeals,  

     



contending that the superior court erred by overlooking or minimizing John's issues with  

                                                                                                       



domestic violence and substance abuse, his inability to meet their child's emotional  


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

needs  and  foster  her  relationship  with  Kimberly,  and  the  relative  instability  in  his  

                                                                            



domestic life.  Kimberly argues in the alternative that even if the superior court was  

                                                                                          



correct to award primary physical custody to John, it erred in its allocation of visitation  

                                                                              



time and expenses.  We affirm on most issues.  We remand for reconsideration of the  

                               



best interests analysis in light of one incident of domestic violence that the superior court  



erred in analyzing, and for reconsideration of the allocation of visitation expenses.  



II.       FACTS AND PROCEEDINGS  



                   John and Kimberly shared physical custody of their daughter  from her birth  



in 2004 until July 2007, when they entered into an agreement by which John had primary  

                                                                                            



physical custody and Kimberly had certain visitation rights.  In 2008 Kimberly married  



Joshua Mendez, a staff sergeant in the United States Air Force.  In June 2008 she filed  

                                                



a petition for a domestic violence protective order against John and a motion seeking full  

                                                                                           



custody of their daughter.  A long-term domestic violence protective order was issued.  



John and Kimberly settled their custody dispute in May 2009, agreeing to share physical  



custody and that Kimberly would dismiss the domestic violence protective order.  



                   In November 2011, John and his girlfriend Anecia had an altercation in  

                                                                                                           



their home which resulted in John's arrest on a charge of assault in the fourth degree.  

                                                                                                



The charge was ultimately dismissed, but the couple immediately separated, and John,  



with his daughter, moved into one unit of a duplex owned by his parents.  In 2012 the  



Air Force transferred Kimberly's husband Joshua to Florida.  Kimberly again filed a  



motion for primary physical custody, asserting that it was in the child's best interests to  

                                                                                                        



move to Florida with her.  



                   Instead,  the  superior  court  awarded  primary  physical  custody  to  John  



following trial.  The superior court found this to be in the child's best interests because  

                                                                               



                                                             -2-                                                      6839
  


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John was better able to provide her with long-term stability.  The superior court based  



its ruling primarily on the facts that John had had primary physical custody of the child  

                                                                                      



in the past and that she had formed a strong bond with John's  parents, her paternal  

                                                                                                 



grandparents.  The superior court found that the evidence was neutral as to the other best  

                                                                                                             



interests  factors, including the existence of domestic violence or substance abuse in  

              



either household.  



                    Kimberly appeals, arguing that the superior court gave too much weight to  

                                                                                                    



John's period of sole physical custody while failing to take into account the instability  

                                                                                         



in his domestic situation and the bond that their daughter had formed with Kimberly's  



husband Joshua.  Kimberly also argues that John had problems with domestic violence  



and alcohol abuse that the court failed to weigh, and that the superior court erred in  



finding that John was able and willing to encourage the mother-daughter relationship.  



Finally, Kimberly argues that the superior court erred in disregarding testimony from a  

                                                                        



teacher regarding the child's fear of discipline in John's home.  



                    Kimberly  argues  in  the  alternative  that  if  John  is  entitled  to  primary  

                                                                                              



physical  custody,  the  superior  court  erred  in  its  allocation  of  visitation  time  and  its  

                                                                          



allocation of the costs of visitation.  



III.      STANDARD OF REVIEW  

                    "The superior court has broad discretion in deciding child custody issues."1  

                                                                                   



       

We will not reverse a custody decision unless the "court has abused its discretion or the  



          1        Iverson v. Griffith , 180 P.3d 943, 945 (Alaska 2008) (citing Jenkins v.  



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



                                                              -3-                                                          6839  


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

                                                                            2  

                                                

controlling  factual  findings  are  clearly  erroneous."     "The  superior  court  abuses  its  



                                                                                        

discretion  if  it  considers  improper  factors  in  determining  custody,  fails  to  consider  



statutorily mandated factors, or assigns disproportionate weight to some factors while  



                         3  

ignoring others."                          

                            A factual finding is clearly erroneous if, after reviewing the record,  



we are left with the definite impression that a mistake has been made.4  

                                                                                                        We review for  



                                                                                      

abuse of discretion the superior court's determination that a particular issue was not fully  



and fairly litigated in a prior proceeding for purposes of the application of collateral  



             5  

estoppel.                                                                                                      

                  We  also  review  for  abuse  of  discretion  the  superior  court's  orders  on  



visitation.6  



IV.	      DISCUSSION  



                                                   

          A.	      The Superior Court Did Not Clearly Err In Finding That The Stability  

                   And Continuity Factor Favored John.  



                   Alaska Statute 25.24.150(c) requires that the superior court base its decision  



                                           

to modify a custody order on the best interests of the child.  Alaska Statute 25.24.150(c)  



lists the factors the court should consider in its best interests determination.  One of them  



is "the length of time the child has lived in a stable, satisfactory environment and the  



          2	       Id. (citing Fardig v. Fardig , 56 P.3d 9, 11 (Alaska 2002)).  



          3	       Id. (citing Fardig ,  56 P.3d at 11).  



          4        Osterkamp v. Stiles, 235 P.3d 178, 183 (Alaska 2010) (citing In re Adoption  



of Missy M., 133 P.3d 645, 648 (Alaska 2006)).  



          5        Misyura v. Misyura , 242 P.3d 1037, 1040 (Alaska 2010) (quoting Borg- 



Warner Corp. v. Avco Corp. (Lycoming Div.), 850 P.2d 628, 635 (Alaska 1993)).  



          6  

                                                                                                                

                   Faro v. Faro , 579 P.2d 1377, 1379 (Alaska 1978) (citing Curgus v. Curgus,  

514 P.2d 647, 649 (Alaska 1973)).  



                                                             -4-	                                                     6839
  


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

                                                             7  

desirability of maintaining continuity."   We have described this factor as including  



                                                                              8  

"both emotional stability and geographic stability,"  and within this rubric the superior  



court may consider a number of subsidiary 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, and the  



children's relationship with the non-custodial parent."9  



                                          

                    The superior court in this case determined that the stability and continuity  



factor favored Kimberly "[i]n the short term" because John's living arrangements had  



been temporarily disrupted when he separated from Anecia, whereas Kimberly's move  



to Florida, while a geographical change, would continue the stable home environment  



that Kimberly and her husband were already providing.  The court found that in the long  

                                                         



term,  however,  the  stability  and  continuity  factor  favored  John.    In  reaching  this  

                                                                                  



conclusion the court placed some weight on the parties' agreement in 2007-08 that it was  

                                                                                                     



then in the child's best interests that she be in John's sole physical custody, and the court  

                                                       



further observed that John had been "a more consistent provider" for the girl over the  



years and "a very stable source of physical and emotional support" for her.  The court  

                             



found that another "stabilizing factor" for the child was the close bond she had developed  

                                                                                    



          7         AS 25.24.150(c)(5).  



          8         Blanton v. Yourkowski, 180 P.3d 948, 954 (Alaska 2008) (citing                                     Meier v.  



Cloud, 34 P.3d 1274, 1279 (Alaska 2001)).  



          9         Barrett v. Alguire , 35 P.3d 1, 9 (Alaska 2001); see also Rooney v. Rooney ,  

                                 

914 P.2d 212, 217 (Alaska 1996) (observing that continuity and stability "come not only  

                                                                                                              

from staying in the same house, or going to the same school.  Consideration should also  

                                                                                             

be given to social and emotional factors such as who the primary care-giver was for the  

                                                                                                                           

child and whether the child would be separated from siblings or family members if he  

                                                       

was placed with one parent rather than the other.").  



                                                                -5-                                                         6839
  


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

                                                                                                      

with  her  paternal  grandparents  in  Alaska,  a  relationship  the  court  believed  it  was  



important to continue.  



                   Kimberly argues that her home life is "obviously more stable" than John's  

                                                    



and  that  the  superior  court  failed  to  give  sufficient  weight  to  John's  "volatile  and  



inconsistent  relationship  with  his  live-in  girlfriend,"  on  the  one  hand,  and  to  her  

                                                                                       



daughter's  good  relationship  with  her  stepfather  Joshua  on  the  other.    In Rooney  v.  



Rooney , we considered the appeal of a mother who was moving from Wrangell to Sitka  

                                                                                 



and sought to take her son along with her.10                                                                      

                                                                We affirmed the  superior court's award of  



primary physical custody to the father, "despite the fact that the separation from [the]  



mother  for  long  periods  of  time  [would]  have  a  destabilizing  effect,"  because  the  



presence of supportive family members in Wrangell, the child's close relationship with  



his father, and the father's active efforts to  "merge" the child with the stepmother's  



family all supported the conclusion "that continuity, in its broader sense, is served by  

                                                                                                                



keeping  [the  child]  in  [the  father's  community]."11  

                                                                                In  this  case,  it  appears  that  the  



superior court gave careful and considered weight to the facts relevant to the stability and  



                                                                                                

continuity factor, including the disruptions in John's domestic life, which the court found  



were likely to be temporary.  It is true that the court did not separately evaluate the  



importance of individual members of the child's "community of  friends and family"  

                                                                                                 



other than John's parents,12 but it was not unreasonable for the court to highlight the  



          10       914 P.2d 212, 214 (Alaska 1996).  



          11       Id.  



          12       In  addition  to  the  good  relationship  the  child  enjoyed  with  Joshua,
  

                                                                                             

Kimberly's husband, she had what was described as a close sibling relationship with the
  

                                                                                      

                                                                                                          (continued...)
  



                                                             -6-                                                         6839  


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

                                                                                                                       

importance of the paternal grandparents given the evidence that they had a major role in  



           

caring for the child since her birth.  We cannot say that the court clearly erred when it  



                                                                                                             

concluded that the interests of long-term stability and continuity favored the award of  



primary physical custody to John.13  



                                                                                            

          B.	       The Superior Court Did Not Err In Rejecting A Presumption Against  

                                                                                                      

                    Custody Based On A History Of Domestic Violence, But It Did Err In  

                    Its Best Interests Analysis When Analyzing One Incident In John's  

                    Household.  



                                

                    Alaska  Statute  25.24.150(g)  creates  a  rebuttable  presumption  against  



                                

awarding custody to a parent with "a history of perpetrating domestic violence against  



the  other  parent,  a  child,  or  a  domestic  living  partner."    A  "history  of  perpetrating  



                                           

domestic violence" exists if the parent has "caused serious physical injury" during a  



domestic  violence  incident  or  "has  engaged  in  more  than  one  incident  of  domestic  



violence."14  

                   Separately, AS 25.24.150(c)(7) requires that the superior court consider  



                                                                                                                  

"any evidence of domestic violence . . . in the proposed custodial household" in making  



its  custody  determination.    Kimberly  argues  that  John  committed  repeated  acts  of  



                                                                   

domestic violence against her and another act against his girlfriend Anecia, and that these  



acts  constitute  a  history  sufficient  to  trigger  the  presumption  against  custody  in  



                                                                                          

AS 25.24.150(g).  Alternatively, Kimberly argues that these acts should have weighed  



          12        (...continued)  



children of John's girlfriend Anecia.  



          13        Kimberly  also  argues  that  John's   tumultuous  home  life  caused  their  



daughter to have behavioral problems at school. But the child's teacher testified that she               

was unsuccessful in identifying the likely cause of the child's behavior, which, in any  

event, was improving by the time of trial.   



          14        AS 25.24.150(h).  



                                                              -7-	                                                      6839
  


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

                                                                                      

heavily       against      John      in    the    superior       court's       best     interests      analysis       under  



AS 25.24.150(c)(7).  



                    1.       Alleged domestic violence against Kimberly  



                    Kimberly first argues that the superior court erred when it declined to find  

                                                                             



that John had committed acts of domestic violence against her.  She contends that John  

        



should have been collaterally estopped from arguing otherwise because of the domestic  

                                                                                                         



violence protective order that was granted against him in 2008.  Collateral estoppel  



"renders an issue of fact or law which has already been decided by a court of competent  

                                                              



jurisdiction conclusive in a subsequent action between the same parties." 15  

                                                                                                                 But "the  



                                                                                                                 16  

                                                                                                                     

decision to apply collateral estoppel is within the discretion of the trial court,"                                and the  



superior court in this case had discretionary grounds for refusing to give the protective  



order collateral estoppel effect.  Kimberly sought the 2008 protective order at the same  



time that she filed her first motion to modify the couple's custody arrangement.  The  

                                                         



order was dismissed six months after it was issued as part of the parties' new agreement  

                                                          



on custody.  The superior court determined that because of the relatively quick dismissal  



of the order and its role in the custody negotiations, John had little incentive to litigate  

                                                                                                                 



it fully.17                                                                             

               The court was also troubled by the order's cursory findings, which stated only  



          15        Smith v. Stafford, 189 P.3d 1065, 1075 (Alaska 2008) (quoting McElroy v.  



Kennedy , 74 P.3d 903, 907 (Alaska 2003)).  



          16       Misyura v. Misyura , 242 P.3d 1037, 1040 (Alaska 2010) (quoting Borg- 



 Warner  Corp.  v.  Avco  Corp.  (Lycoming  Div.),  850  P.2d  628,  635  (Alaska  1993))  

(internal quotation marks omitted).  



          17        See McAlpine v. Pacarro, 262 P.3d 622, 627 (Alaska 2011) (holding that  

                                                                                

"it may be unfair to apply collateral estoppel if the stakes in the first proceeding did not  

                           

warrant a full and vigorous contest of the issue" (citing Sengupta v. Univ. of Alaska,  

                                                                                                          (continued...)  



                                                             -8-                                                          6839  


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

                                             

that  John  had  "committed  a  crime  involving  domestic  violence"  without  specifying  



                                                                           

which of the petition's allegations had been borne out by the evidence.  It was within the  



                                                                                                                       

court's discretion to decline to give the protective order collateral estoppel effect, and we  



do not find that the discretion was abused.  



                    Kimberly  appears  to  argue  that  even  without  the  benefit  of  collateral  



estoppel, the evidence that John committed more than one act of domestic violence was  

                                                                          



sufficient to outweigh his denials.   But the superior court declined to credit Kimberly's  



testimony alleging domestic violence between them, and we do not reweigh the evidence  

                                                        



or reassess the trial court's determinations of witness credibility.18 

                                                                                                  Absent a finding that  



                                        

John committed domestic violence against Kimberly, there was no history of domestic  



                          

violence  which  would  require  application  of  the  presumption  against  custody  in  



AS 25.24.150(g), and we affirm the superior court's ruling on this issue.  



                    2.        The November 2011 incident involving Anecia  



                    Because Kimberly failed to establish that John had a history of perpetrating  



                                                                 

domestic violence, the presumption against custody in AS 25.24.150(g), which depends  



                                     

on  such  a  history,  was  not  triggered.    But  Kimberly  also  argues  that  the  physical  



                                                                              

altercation between John and Anecia in November 2011 was an incident of domestic  



                                                                                

violence for purposes of AS 25.24.150(c)(7) that had to be weighed in the best interests  



                                                                             

analysis, and that the superior court erred in giving it no weight.  We conclude that this  



argument has merit.  



          17        (...continued)  



21 P.3d 1240, 1250, n.29 (Alaska 2001))).  



          18        Pam R. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs.                                ,  



185 P.3d 67, 71 (Alaska 2008) (quoting                        In re Adoption of A.F.M. , 15 P.3d 258, 262  

(Alaska 2001)).  



                                                              -9-                                                        6839
  


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

                                                                             

                    Although John and Anecia were not living together at the time of trial, the  



                                                            

court could easily have concluded that they would do so again; we assume this to be the  



court's premise.  John and Anecia had lived together for four years, had a child together,  



                                                                                            

and continued to share major expenses while living apart.  Their children were close.  



                                                                                                

Moreover, regardless of whether John and Anecia still lived together, the governing  



                                                                                              

statutes make domestic violence relevant even if it involves persons "who have lived  



together."19  



                                                                                             

                    There was no dispute that there was a physical altercation involving John  



                                                                               

and Anecia.  The court found "[I]t's clear that there was a disturbance, that there was an  



                 

argument, that  . .  . it did become physical."  The police were called, and John was  



                                                                

charged with assault in the fourth degree (a charge that was still pending at the time of  



trial but was later dismissed).  After discussing the incident in some detail in its oral  



                                                                                                                      

findings, the superior court concluded, "I'm not sure how much weight that I can put on  



                                                                            

that particular instance in this matter," reasoning that there had been no showing that a  



crime had been committed and that the child had not been present.  The court reiterated  



                 

in its later written findings that Anecia's testimony "did not establish by a preponderance  



                                                                         

that Anecia was the victim of any assault" and that the child had not been in the home  



                                           

at the time.  The court did not mention AS 25.24.150(c)(7) or give any weight to the  



incident in its best interests analysis.  



          19        AS 18.66.990(5)(B) (emphasis added).  AS 26.90.010 provides that  the  



definition of "domestic violence" in Title 25 is that given in AS 18.66.990.  "Domestic  

                                                                                         

violence" means violence "by a household member against another household member."  

                                                                                                      

AS 18.66.990(3).  "Household member" includes not just people who live together but  

                             

also people "who have lived together."  AS 18.66.990(5)(B).  



                                                               -10-                                                             6839  


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

                                                                                                    

                     However, each of the reasons the superior court gave for its inability to  



                                                                                                              

weigh the incident in the best interests analysis was legally erroneous.  First, the superior  



court took note of the evidence that John was simply warding off  physical contact  



                                                                                                                            20  

                    

initiated by Anecia and that self-defense on his part had not been disproved.                                                   In its  



                                                                                                               

written findings, the superior court ruled that because Anecia did not establish that she  



                                      

was "the victim of any assault . . . the presumption in AS 25.24.150(g) [had] not been  



proven."  But while it is true that the presumption provision in subsection (g) looks only  



                                                      

to instances of domestic violence in which the parent seeking custody is the perpetrator,  



                                                                

the  best  interests  factor  of  subsection  (c)(7)  requires  a  trial  court  to  consider  "any  



evidence of domestic violence . . . in the proposed custodial household."  It does not  



                                                                                                                             21  

                                                                                

matter  whether  the  parent  seeking  custody  was  the  aggressor  or  the  victim.                                              The  



incident with Anecia was relevant to the best interests analysis regardless of whether  



John was acting in self-defense.  



                                                                                                       

                     Second, the superior court downplayed the incident because it found a lack  



                                                           

of evidence that an assault occurred, relying on Anecia's testimony to find that she was  



                                                                                                                    

never in "fear of injury or pain."  But if the court believed that Anecia was the aggressor,  



                                                                                      

then the relevant question would be whether John, not Anecia, feared imminent physical  



           20        Kimberly contests this finding.    But although there was evidence to the   



contrary, both Anecia and John testified that John had not been violent that night; John   

testified that Anecia was the aggressor and he was merely trying to defend himself.                                                The  

superior court did not clearly err in crediting John's testimony.  



           21        See Heather W. v. Rudy R., 274 P.3d 478, 483-84 (Alaska 2012); Iverson  

                                                                                 

v. Griffith, Mem. Op. & J. No. 1260, 2006 WL 2578692, at *4 (Alaska, Sept. 6, 2006).  

                                                  

In Heather W. , the superior court considered the incident of domestic violence under the  

                                                                                                             

rubric of the stability factor, AS 25.24.150(c)(5), and we affirmed it in that context.  

            

274 P.3d at 484-85.  

                                                                 -11-                                                                6839  


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

          22  

                                                                

injury.        John's testimony could support such a finding.  Furthermore, no matter which  



                                                                         

person was the aggressor, an attempted assault occurred if the perpetrator attempted to  



put the victim in fear of imminent physical injury, regardless of success, and attempted  



                                                          23  

assault  is  a  domestic  violence  crime.      And  finally,  because  both  John  and  Anecia  



                                                            

suffered some minor injury during the altercation, the evidence could support a finding  



                                                                                                                                  24  

                                                                                     

that an assault occurred regardless of whether either of them feared injury at the time. 



                                                                                                

                     Third, the superior court disregarded the incident because the child was not  



                                                                                                       

present when it occurred.  But domestic violence in the proposed custodial household  



must  be  weighed  in  the  best  interests  analysis  regardless  of  whether  the  child  was  



            25  

present.           The  statutory  requirement,  again,  is  that  the  superior  court  weigh  "any  



evidence of domestic violence . . . in the proposed custodial household."26  

                                                                                                                   There is no  



requirement  that  the  child  witness  the  violence.    We  previously  observed  that  "the  



                                              

language of AS 25.24.150(c) suggests that the legislature believes that domestic violence  



          22         See AS 11.41.230.  



          23        Parks v. Parks , 214 P.3d 295, 300 (Alaska 2009) (citing AS 25.90.010 and     



AS 11.41.230(a)(3)).  



          24         See AS 11.41.230(a)(1).  



          25  

                                                                                               

                     See Heather W., 274 P.3d at 482; Iverson , 2006 WL 2578692, at *4.  We  

                                                                       

have also upheld the trial court's weighing of domestic violence incidents that occurred  

                                                                              

outside the child's presence in child in need of aid cases.  See, e.g., Barbara P. v. State,  

Dep't of Health & Soc. Servs. , 234 P.3d 1245, 1257-58 (Alaska 2010);  Winston J. v.  

State, Dep't of Health & Soc. Servs ., Office of Children's Servs., 134 P.3d 343, 348  

(Alaska 2006).  



          26         AS 25.24.150(c)(7) (emphasis added).  



                                                               -12-                                                              6839  


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

in a proposed custodian's home always directly affects the well-being of the child"                                       27 and  



a "child need not see domestic violence in order to be exposed to it."28  



                    The superior court's reluctance to weigh this incident of domestic violence  

                                                                                                     



in its best interests analysis thus appears to have been based on several legal errors in its  

                                                                          



analysis.    We  remand  for  the  court's  reconsideration  of  custody  in  light  of  this  



discussion.  



          C.	       The Superior Court Did Not Clearly Err In Finding That Substance  

                    Abuse Did Not Affect The Child's Well-Being.  



                    Alaska Statute 25.24.150(c)(8) requires the superior court to factor into its  

                                                                                  



best interests analysis "evidence that substance abuse by either parent . . . directly affects  

                                                                                               



the emotional or physical well-being of the child."  Kimberly argues that the superior  

                           



court erred in finding that John did not have a substance abuse problem that affected their  

                                                                                             



daughter's well-being.  The evidence on the subject was mixed.  Although John had been  

                  



convicted once of driving under the influence, he had fulfilled the requirements of his  



treatment program and testified that he had changed his life to avoid similar problems in  

                                                                                    



the future.  There was conflicting testimony as to whether the later incident involving  



Anecia in November 2011 was attributable in part to John's drinking. The superior court  

                                                                                                         



noted that there were allegations about Kimberly's substance abuse too, but it concluded  

                                                                                                            



that there was no evidence that drinking by either parent "directly affected their ability  

                                          



to parent or the emotional or physical well-being of the child."  It was up to the superior  

                                                                                                          



          27	       Iverson , 2006 WL 2578692, at *4.  



          28        Heather W. , 274 P.3d at 482 n.15 (quoting Iverson , 2006 WL 2578692, at  



*4 n.11).  

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

                                                            29 

                                                                                                              

court to resolve the evidentiary disputes,                     and we see no clear error in its decision of this  



issue.  



                                                              

          D.	       The Superior Court Did Not Clearly Err In Finding That John Was  

                    Able To Meet The Child's Emotional Needs.  



                    Kimberly argues that the superior court clearly erred in finding that John  



                                                                             30  

                                                                                                  

was able to meet their daughter's emotional needs,                              relying on testimony by a teacher  



                                                                                           

that  the  child  was  afraid  of  getting  in  trouble  from  John  because  of  her  disruptive  



                                                                                 

behavior at school.  This argument is without merit.  John testified that in order to deal  



                                                                                  

with his daughter's misbehavior at school, he would "take privileges away" and make  



                                                                                                    

her  "contemplate  .  .  .  whether  or  not  it's  even  worth  it  to  do  that":    "She[]  get[s]  



                                                                                 

grounded for the most part.  She loses play time."   There was no evidence that John  



                                                                                                

mischaracterized  his  disciplinary  methods.    Nor  was  there  any  evidence  that  this  



                                                                             

discipline adversely affected his ability to care for the child's emotional needs or that it  



                                                                        

should otherwise weigh against him in the best interests analysis.  We see no clear error  



in the court's determination that the parents are equally able to meet their daughter's  



needs.   



          E.	       The Superior Court Did Not Clearly Err In Finding That John Was  

                    Able To Encourage The Child's Relationship With Kimberly.  



                    Alaska   Statute   25.24.150(c)(6)   requires   the   court   to   consider   "the  



                                                                                                             

willingness and ability of each parent to facilitate and encourage a close and continuing  



          29        See Pam R. v. State, Dep't of Health & Soc. Servs., Office of Children's  



Servs., 185 P.3d 67, 71 (Alaska 2008) (quoting In re Adoption of A.F.M. , 15 P.3d 258,  

                                                                                                                 

262 (Alaska 2001)).  



          30        See  AS  25.24.150(c)(1)-(2)  (requiring  consideration  of  "the  physical,  

                                                                                  

emotional, mental, religious, and social needs of the child" and "the capability and desire  

                                                                         

of each parent to meet these needs").  

                                                              -14-	                                                            6839  


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

relationship between the other parent and the child."  Kimberly argues that the superior  

                                                                                  



court erred in finding that John was willing and able to encourage the mother-daughter  

                                  



relationship.  She cites to her own testimony that John had at times withheld important  

                                                                            



information about their daughter and had refused to let Kimberly see her for a three-week  

                                                   



period during the year that he had primary physical custody.  In analyzing this factor, the  

                            



superior court acknowledged that each parent had said "horrible things about the other  



parent here in court"; however, it discounted this information in favor of the parents'  



history,  which  it  found  to  be  exemplified  by  exchanges  of  emails  addressing  their  

                                                                                                           



daughter's  problems  at  school  and  showing  that  the  parents  included  each  other  in  

                                                                       



decision-making and worked together in their daughter's best interests.  It was not clear  

                                                                                                                        



error  for  the  superior  court  to  find  this  collaborative  history  more  probative  of  the  



parents' future relationship than the accusations they made against each other in the  



context of litigation.  



          F.	       The  Superior  Court  Did  Not  Abuse  Its  Discretion  In  Scheduling  

                    Visitation.  



                    The   superior   court   granted   Kimberly   visitation   during   alternating  



Christmases and Thanksgivings, each spring break, and each summer vacation with the  

                                                                                                           



exception of ten days at the beginning and end of the summer.  Kimberly argues that the  

                                                                                                



superior court abused its discretion in three ways in fashioning this schedule.  She argues  

                                                                  



first that the superior court erred by alternating Christmases instead of dividing each one  

                    



between  the  parents.    But  by  alternating  holidays  rather  than  dividing  them  up,  the  

                                                                  



superior court sought to minimize the time and inconvenience of holiday travel while  

                        



ensuring that Kimberly and her daughter had an extended holiday period together, either  

                                                               



Christmas or Thanksgiving, each school year in addition to spring break.  This was a  

                                                                                                                    



rational allocation of time and not an abuse of discretion.  



                                                               -15-	                                                        6839
  


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

                    Kimberly argues that the superior court also erred by allowing John to  



retain custody during the first ten days and the last ten days of the summer. The superior  

                                                                                                                



court explained that it was important to allow John to enjoy part of the summer with his  

                                                            



daughter without the pressures of school.  Kimberly argues that this rationale improperly  

                                               



focused on John's needs, not the child's, but it is consistent with the child's best interests  

                                                 



to have some recreational time with her father during the summer months.  Indeed,  



Kimberly  suggested  an  identical  allocation  in  the  event  she  were  awarded  primary  



physical custody.  This aspect of the award was not an abuse of discretion either.  



                    Third, Kimberly argues that the superior court erred in awarding her only  

                                                                                  



five days of visitation if she comes to Alaska to visit, contending that this is a very brief  



allocation "for a parent who has traveled almost 5,000 miles from Florida to Alaska."  



But this provision becomes relevant only if Kimberly visits Alaska while the child is in  

                                                                                                                            



school, as the holiday and vacation periods are otherwise allocated to one parent or the  

                                                                                                               



other.    If  Kimberly  relocates  to  Anchorage  permanently,  the  order  makes  clear  that  



physical custody will again be shared.  While extended visits by Kimberly short of  

              



permanent relocation could necessitate a modification to the schedule, we cannot say that  

                                                                                 



providing five days of visitation for any visits to Alaska that are not otherwise addressed  

                                                 



in the order was an abuse of discretion, given the broad discretion the superior court has  

                                                           



in this area.31  

                      



          G.	       It  Was  Error  To  Allocate  Visitation  Expenses  Before  Making  An  

                    Award Of Child Support.  



                                                                                    

                    Finally, Kimberly argues that the superior court erred in requiring that she  



                                                                                                        

pay 75% of the estimated travel expenses for the proposed visitation.  We agree that the  



court  erred  procedurally.    Alaska  Civil  Rule  90.3(g)  requires  that  the  court  allocate  



          31        Faro v. Faro , 579 P.2d 1377, 1379 (Alaska 1978).  



                                                             -16-                                                            6839  


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

visitation expenses "[a]fter determining an award of child support under this rule."  Here,       



the superior court allocated visitation expenses first, and Kimberly correctly observes  



that this requires a remand.32  

                                                 The superior court, in making its allocation of visitation  



expenses, should take into account any child support order.   



V.         CONCLUSION  



                      We  VACATE  the  custody  order  and  REMAND  for  reconsideration  of  

                                                                    



custody and for reallocation of travel expenses in accordance with this opinion.  



           32         See Skinner v. Hagberg, 183 P.3d 486, 491-92 (Alaska 2008).  



                                                                   -17-                                                                 6839  

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