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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Sagers v. Sackinger (2/14/2014) sp-6864

Sagers v. Sackinger (2/14/2014) sp-6864

         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  



ADAM SAGERS,                                            )  

                                                        )        Supreme Court No. S-14843  

                            Appellant,                  )  

                                                        )        Superior Court No. 4FA-08-01781 CI  

                   v.                                   )  

                                                        )        O P I N I O N  

COLLEEN SACKINGER,                                      )  

                                                        )        No. 6864 - February 14, 2014  

                            Appellee.                   )  

                                                        )  



                   Appeal  from  the  Superior  Court  of  the  State  of  Alaska,  

                                       

                   Fourth Judicial District, Paul R. Lyle, Judge.  



                   Appearances:  Adam  Sagers,  pro  se,  Fairbanks,  Appellant.  

                                        

                   Margaret O'Toole Rogers, Foster & Rogers, LLC, Fairbanks,  

                                                                      

                   for Appellee.   



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

                                                

                   Bolger, Justices.   



                   MAASSEN, Justice.  



I.       INTRODUCTION  



                   Adam  Sagers  appeals  the  superior  court's  award  of  physical  and  legal  

                                                         



custody of his minor son to the boy's mother, Colleen Sackinger.  Adam contends that  

                                                                  



the superior court abused its discretion in denying a continuance of trial, that it clearly  

                                                                                            



erred in its factual findings, and that it abused its discretion in conditioning unsupervised  

                                                   



visitation on Adam's completion of a psychological evaluation. Adam also contends that  

                                                                                          


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

the  trial  judge  was  personally  biased  against  him.    Finding  no  error,  we  affirm  the  



judgment below.  



                                                           1  

II.       FACTS AND PROCEEDINGS   



                    Adam Sagers and Colleen Sackinger are the parents of a five-year-old son.  

                                                                           



Colleen has two other children with her husband, Joseph Sackinger, from whom she is  

                                                                                                                         



separated.         Adam  and  Colleen  began  living  together  in  2006.    Adam  exhibited  

                                                                        



controlling tendencies from the start; he called Colleen derogatory names, limited her  



                                                                                                       

contacts with male acquaintances, and harassed her at work.  In one incident he cut all  



                                                                              

the telephone and computer cords in the home after seeing a picture of a male friend on  



                                                   

Colleen's  computer.    Following  another  argument  in  2007,  Colleen,  fearing  for  her  



                                                                                                       

safety, tried to leave the home with her children.  Adam blocked the doorway, forcing  



her to push him out of the way.  She fled to a women's shelter.  



                    Adam ransacked the home in her absence, destroying household items and  



                

nearly all of Colleen's personal property.  He collected everything belonging to her that  



he considered to be sexual in nature and burned it in the front yard.  



                    In May 2007 Colleen learned she was pregnant.  Adam moved back in with  



                                                                                    

her in January 2008.   He took care of Colleen during the remainder of her pregnancy but  



                                                                                      

refused to leave after their son was born.  In May 2008 Colleen obtained a domestic  



                                                                                                          

violence  restraining  order  against  Adam  and  ejected  him  from  her  home  with  the  



                                                             

assistance of the police.  Adam filed this suit shortly thereafter, seeking custody of their  



son.  



                                                                       

                    Trial  was  originally  set  for  June  2009.    The  court  continued  trial  until  



February 2010 to allow Adam to address what he claimed to be a life-threatening lung  



          1         The  history  of  the  parties'  relationship  is  taken  from  the  trial  court's  



findings of fact following the custody trial.  



                                                              -2-                                                           6864  


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

                                                     

condition.  The parties twice more continued trial by stipulation before setting the date  



                                                                         

for February 2011.  The court then continued the trial three times pending the resolution  



of Adam's criminal domestic violence case.  The court granted a last continuance, to  



June 2012, when Adam asserted that he needed a hernia operation.  



                                                              

                    At the pretrial conference at the end of May 2012, Adam requested another  



                                                                                                          

continuance on grounds that he was recovering from pneumonia.  The court refused to  



               

grant the continuance without testimony from a doctor.  On the day trial was to begin,  



                                                                                                    

Adam presented a note from a physician's assistant, who wrote that Adam suffered from  



                             

a "serious medical condition" which "should preclude his court activity for at least one  



week."  The court refused to continue the trial without medical testimony that it was  



necessary to do so.  



                    The physician's assistant testified telephonically that Adam had recently  



                                         

had pneumonia, and that as of the preceding Friday he still had symptoms indicating that  



he was not yet fully recovered.  The court also heard from Colleen, who testified that,  



                                 

according to her son, he and Adam had been bike-riding all day the day before and had  



                                                                                    

then gone to "the go-carts in North Pole" until late in the evening.  The physician's  



assistant testified that given Adam's condition it would have been inappropriate for him  



                                                                                    

to engage in vigorous activity, and that if he was able to bicycle with his son he should  



                                                                                                               

be able to participate in court proceedings.  The court then made an oral finding that  



Adam was exaggerating the effects of his pneumonia.  The court nonetheless granted  



Adam a 24-hour continuance to recover - his seventh continuance.  



                                                                                              

                    The next day Adam appeared in court unable or unwilling to speak and  



communicated by passing notes to the court. The court reiterated its finding that Adam's  



                          

claims of illness were not credible.  After the court declined to communicate with Adam  



                                                                                                           

through note-passing, trial began with Adam initially refusing to speak.  Before long he  



                                                                     

regained enough of a voice to restate requests that the judge recuse himself and to make  



                                                              -3-                                                        6864
  


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

                                                                                     

other objections that had already been overruled, and he repeatedly coughed into the  



                                     

microphone in what the court found to be an attempt to disrupt testimony that harmed his  



                                                                                             

case.  When he left the courtroom a few times to "get some air," trial proceeded in his  



                                                                                                        

absence, the court having warned him about the consequences and then reiterating for  



                                                                                                       

the record its finding that Adam was faking the extent of his illness.  Less than two hours  



                                                             

into the trial, Adam gathered his things and left the courtroom for the rest of the day; the  



trial continued without him.  



                                                                                  

                    The next morning Adam filed a motion for reconsideration of the court's  



                                                       

ruling that he was faking his illness.  The court denied the motion, reiterating its findings  



                                                        

that Adam appeared able to speak  despite his claims to the contrary, that his cough  



seemed  to  occur  selectively,  and  that  his  weekend  recreational  activities  belied  his  



condition.  Adam again left the courtroom and did not return.  



                    As  trial  continued,  the  court  heard  testimony  from  the  court-appointed  



custody  investigator,  counseling  center  officials  who  had  interviewed  the  family  



                                           

members,  and  Colleen,  all  of  whom  testified  that  Adam  was  abusive,  unstable,  and  



controlling.  The Office of Children's Services (OCS) had referred Adam and Colleen  



                                                                                                    

to Fairbanks Counseling and Adoption, and one of its counselors, Randy Lewis, testified  



                                                                                                   

as an expert in diagnosing and treating mental health conditions. He testified that he had  



provisionally  diagnosed  Adam  with  oppositional  defiant  disorder  and  definitively  



                                                                                 

diagnosed him with narcissistic personality disorder, and that these behavioral disorders  



                                                                                                     

impeded  Adam's  parenting  ability.                       The  custody  investigator,  Greg  Galanos,  was  



                                                                                           

qualified as an expert in custody investigations and mental health issues.  He reviewed  



       

the counselor's notes and testified that the identified disorders would make it difficult for  



                

Adam to co-parent with Colleen and would impede his ability to recognize and attend  



                        

to the needs of their son.  Galanos and a program manager at Fairbanks Counseling and  



Adoption, Linda Huffaker, both testified about Adam's history of domestic violence.  



                                                                -4-                                                         6864
  


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

Galanos testified that Adam should undergo a complete psychological evaluation, and  



                                                                                    

he recommended that Adam should receive only short,  supervised visitation until that  



was done.  Colleen testified about the abuse described above.   



                                                                                             

                    Based on this testimony the superior court found that Adam had a history  



of  domestic  violence  that  triggered  the  statutory  presumption  against  awarding  him  



custody, citing the incidents in which he cut the computer and telephone cables in the  



home,  blocked  the  doorway,  and  destroyed  Colleen's  personal  property.    The  court  



                                                                        

granted Colleen sole legal and primary physical custody and granted Adam supervised  



                                                      

visitation two days each week, three weeks out of every month, for four to six hours each  



                                        

visit.  The court also ruled that Adam would be eligible for unsupervised visitation only  



after he had completed a psychological evaluation.  



                    Adam appeals the court's denial of his motions for continuance, its award  



                                 

of custody to Colleen, its requirement that he complete a psychological evaluation before  



                                                                                                        

being allowed unsupervised visitation, and its denial of his motion that the judge recuse  



himself.  



III.      STANDARD OF REVIEW  



                                                                                              

                    We "will not disturb a trial court's refusal to grant a continuance unless an  



                                                                                                           

abuse of discretion is demonstrated. An abuse of discretion exists when a party has been  

deprived of a substantial right or seriously prejudiced by the lower court's ruling."2  The  



                                     

court will consider "the particular facts and circumstances of each individual case to  



                                                                                                     

determine whether the denial was so unreasonable or so prejudicial as to amount to an  



                              3  

abuse of discretion."   



          2         Greenway  v.  Heathcott,  294  P.3d   1056,  1062  (Alaska  2013)  (internal  



quotation marks and footnotes omitted).  



          3        Id. (quoting Bigley v. Alaska Psychiatric Inst. , 208 P.3d 168, 183 (Alaska  

                                                                                         

                                                                                                           (continued...)  



                                                             -5-                                                           6864  


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

                                                                                          

                   "The  superior  court  has  broad  discretion  in  its  determination  of  child  



                                                                     

custody.  We will not set aside a lower court's child custody determination unless its  



                                                                                                       4  

factual findings are clearly erroneous or unless it abused its discretion."   We will set  



aside factual findings as clearly erroneous "only 'when our review of the entire record  



                                                                                                             5 

                                                                                                               We will  

leaves us with a definite and firm conviction that a mistake has been made.' " 



find  an  abuse  of  discretion  for  custody  and  visitation  decisions  "if  the  trial  court  



                                                                                                           

considered  improper  factors,  or  improperly  weighted  certain  factors  in  making  its  

determination."6 



                                                                                                        

                    We review de novo the question of whether a judge appears biased, which  

is assessed under an objective standard.7  We review for an abuse of discretion the denial  



                                                                         8  

of a motion to disqualify an allegedly biased judge.   



         3(...continued)  



2009)).  



         4         Cusack v. Cusack, 202 P.3d 1156, 1158-59 (Alaska 2009).  



         5         Id. at 1159 (quoting Millette v. Millette             , 177 P.3d 258, 261 (Alaska 2008))  



(internal quotation marks omitted).  



         6         Id. (quoting Millette , 177 P.3d at 261).  



         7         Griswold v. Homer City Council, 310 P.3d 938, 941 n.6 (Alaska 2013)  



("On the separate issue of whether, given the circumstances, reasonable people would  

question  the  judge's  ability  to  be  fair,  the  proper  standard  of  review  is  de  novo  -  

                                                                                           

because  'reasonable  appearance  of  bias'  is  assessed  under  an  objective  standard.")  

(quoting Phillips v. State , 271 P.3d 457, 459 (Alaska App. 2012)).  



         8         Greenway  v.  Heathcott,  294  P.3d  1056,  1062-63  (Alaska  2013)  ("We  



review denial of a motion to disqualify a judge for abuse of discretion.").  



                                                           -6-                                                     6864
  


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

IV.       DISCUSSION
  



          A.	      The Superior Court Did  Not Abuse Its Discretion When It Denied  

                                                           

                   Adam's Request To Continue The Trial Because Of Illness.  



                   We have stated that a  party's claimed illness "does not ipso facto require  



that a continuance be granted"; the trial court must balance the "competing goals [of]  



                                                                                                            

prompt resolution of litigation on [the] one hand, and a fair opportunity for all parties to  



                                              9 

                                                 Under this test a party's illness requires a continuance  

present their cases on the other." 



                                   

"only to the extent that the illness prejudices the party's case by preventing him from  



                                                                      10  

                                                                          Thus, it was not enough in this case  

adequately preparing for or participating in trial."                                              



for Adam to show that he was sick or even that a medical professional thought it best that  

                                                                   



he not attend trial; a superior court does not abuse its discretion when it orders a sick  



litigant to proceed with trial if the litigant is "capable of participating in trial without  



                                                      11  

serious risk to his life or well-being."                  



                   Adam  argued  that  his  in-court  symptoms  and  the  testimony  of  the  



physician's assistant who had treated him showed that he was unable to participate in  



                                                                                                         

trial.  But the witness's testimony failed to establish Adam's claim for two reasons.  First,  



                                                                                                     

although the physician's assistant  had originally recommended that it would be "better  



if  [Adam]  had  a  week  to  recover  from  pneumonia,"  he  never  stated  that  courtroom  



                                                                                

activity  would  pose  a  serious  risk  to  Adam's  health.    And  second,  he  modified  his  



original recommendation after hearing that Adam had gone bicycling the day before,  



          9        Azimi v. Johns , 254 P.3d 1054, 1060 (Alaska 2011) (internal quotation  



marks and footnotes omitted).  



          10       Id.
  



          11       Id.
  



                                                            -7-	                                                     6864
  


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

testifying that if Adam was able to do that, he should be able to participate in the trial as  



well.  



                                           

                     Furthermore, even if the medical testimony had unequivocally supported  



                                                                                                                        

Adam's  claim,  it  is  the  superior  court's  task  to  weigh  the  evidence,  and  we  give  

particular deference to the trial court's rulings based on the demeanor of witnesses.12  



                             

The trial judge in this case, Judge Paul R. Lyle, carefully and repeatedly described for  



                   

the  record  his  contemporaneous  observations  of  Adam's  appearance,  conduct,  and  



                                                                                                         

demeanor; this record greatly aids our appellate review of the issue.  In concluding that  



                                                              

Adam was feigning the symptoms of his illness, Judge Lyle noted that Adam's demeanor  



                                                                                 

was no different than on days when he was well; that Adam appeared able to speak when  



                                                                                       

he really wanted to, despite his note-passing; and that he coughed only during testimony  



                                                 

that was damaging to his case.  Judge Lyle also credited Colleen's testimony that Adam  



                                                                          

was able to speak in a normal voice outside the courtroom.  We see no clear error in the  



                                                                                                            

judge's finding that Adam's claim of serious illness was not credible, and we therefore  



                                      

conclude that there was no abuse of discretion in the court's refusal to continue the trial  



yet again on the basis of that claim.  



                                                     

           B.	       Adam Has Waived The Argument That The Superior Court Erred In  

                     Failing To Order Further Discovery From Colleen.  



                     Adam argues that his discovery rights were violated because Colleen never  



provided "any admission, productions, or any expert reports," specifically "any statement  



                                                                                       

or diagnosis by the Fairbanks Counseling and Adoption, Randy Lewis, Linda Huffacker,  



                                                                           

or  OCS  regarding  Mr.  Sagers."                      Adam  does  not  identify  when  he  requested  this  



                                                                                                              

information, the efforts he took to obtain it in the superior court, or how the alleged lack  



                                        

of disclosure affected his preparation for trial.  We do not ordinarily address arguments  



           12  

                                      

                     Millette at 177 P.3d 261 (Alaska 2008) (quoting Ebertz v. Ebertz , 113 P.3d  

643, 646 (Alaska 2005)).  



                                                                 -8-	                                                            6864  


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

                                      13  

that are cursorily briefed.               Adam's allegation of discovery abuses is too vague for  



review, and we consider it waived.  



          C.	      The Superior Court Did Not Abuse Its Discretion In Awarding Colleen  

                   Custody.  



                   Adam  argues  that  the  superior  court  abused  its  discretion  in  granting  

                                                                            



custody to Colleen because it based its decision "on false pretense with no physical or  



                                                                                                       

factual proof."  To the contrary, the superior court based its decision on testimony by an  



                                                    

OCS employee, family counselors, a child custody investigator, and Colleen.  Adam's  



decision not to give testimony rebutting Colleen's case was his own decision, made  



against the strong advice of the superior court that he make an effort to support his  



                                                           

position.  The superior court addressed each of the best interests factors in its written  



                                                                      

decision, and its findings of fact were based on the evidence and not clearly erroneous.  



                   1.	       Evidence of Adam's behavioral issues and abuse  



                   Adam argues that the superior court clearly erred in finding that he had  



behavioral disorders and a violent past.  Specifically, he attacks the superior court's  



                                            

reliance on the testimony of Galanos, the custody investigator, arguing that Galanos  



lacked "[c]oncrete evidence to support what he said was true."  



                                                                                                 

                   But the court did not clearly err in finding otherwise.  Galanos met several  



                                                                                                          

times during his investigation with Adam, Colleen, and their son.   He reviewed the  



                                                                                                          

records kept by OCS and the family's counselors.  He was qualified as an expert in child  



                                        

custody recommendations and mental health issues.  He based his recommendation on  



his in-person interactions with the parties, his review of relevant documents, and his  



                                                                   

expertise.  His testimony was probative of the parties' relative parenting abilities and the  



court did not err in considering it.  



          13       See Aviation Assocs., Ltd. v. TEMSCO Helicopters, Inc., 881 P.2d 1127,  



1130 n.3 (Alaska 1994).  



                                                            -9-	                                                         6864  


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

                    Adam also argues that the superior court erred in crediting the testimony  



of employees of Fairbanks Counseling and Adoption.  When Galanos cited the center's  



records as evidence of Adam's behavioral issues, Adam objected on the ground that "I  



                                                                                        

never spoke to  them  ever once. They don't know  who  I am."    But  even  if  Adam's  



                                             

unsworn factual assertion - made in the context of a spoken objection - was sufficient  



                                                                                                                  

to create a factual dispute as to the veracity of the counselors' testimony, the superior  



                                                                                                        

court  did  not  clearly  err  in  finding  that  Adam  had  been  seen  by  the  center.    Both  



counselors testified that they had personally met with Adam, and they provided details  



                                             

of the timing and duration of their visits.  Huffaker testified that the center had recorded  



62.75 hours of in-home consultation with Adam and Colleen in late 2006 and early 2007.  



                                  

Lewis confirmed that he had met with Adam twice in February 2007.  The superior court  



                                                                                                 

found the counselors' testimony to be generally "credible and persuasive."  It did not  



clearly  err  when  it  chose  to  credit  the  sworn  testimony  of  the  two  counselors  over  



Adam's unsworn denial that the counseling had ever occurred.   



                                                                           

                    Adam also appears to argue that the superior court clearly erred in ignoring  



the testimony of Dana Pictou, a clinician at a behavioral health clinic.  Pictou testified  



                                                                                          

at an earlier proceeding in 2008 that Adam had once sought help from Pictou's clinic for  



                                                                                                              

dealing with his grief after witnessing a fatal accident.   According to Adam, Pictou  



                                                                     

testified that psychiatrists at the clinic found him to be "stable and normal."  But in fact  



                                                    

Pictou merely testified that Adam had consulted with two other psychiatrists at the clinic  



                         

and that neither recommended any continuing course of anxiety medication.  He did not  



                                                                                                  

testify that Adam was "stable and normal," as Adam contends.  The superior court did  



       

not clearly err when it failed to cite this ambiguous, four-year-old testimony as evidence  



                                                                           

of Adam's mental stability, especially given the overwhelming and contemporaneous  



evidence that Adam continued to have serious mental health issues.  



                                                              -10-                                                         6864
  


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

                    2.         Evidence of violence and substance abuse in Colleen's household  



                    Adam  also  argues  that  the  superior  court  abused  its  discretion  by  not  



considering "all issues [regarding the child's] safety with Colleen Sackinger and Joseph     



Sackinger."     We   again   find   that the               superior   court did          not abuse       its   discretion  and  



adequately considered the relevant facts.  



                                                                                                                

                    Adam first contends that the superior court ignored issues of violence in the  



Sackinger  household.    But  although  the  superior  court  did  not  discuss  the  specific  



                                                                                                     

allegations of domestic abuse, it did acknowledge that Colleen had once obtained a short- 



term  domestic  violence  restraining  order  against  Joseph;  it  found  that  Colleen  had  



                                                   

attended counseling and support groups to deal with her history of abusive relationships  



                                                                                                         

and had thus "obtained the protective capacity she needs to recognize potential domestic  



violence and to be a protective parent for her children"; and it found that Joseph had  



                                                                                          

successfully  co-parented  his  other  children.    The  court  further  observed  that  OCS  



considered  Joseph  to  be  "a  safe  placement"  and  that  there  was  no  evidence  he  was  



"presently a danger to his children."  Given the careful consideration the superior  court  



                                                                                

gave to this issue and given its resultant findings of fact, we see no abuse of discretion  



in the way it weighed the domestic violence in Colleen's past.  



                                                                                                   

                    Adam further argues, mistakenly, that the superior court "totally ignored"  



                                                                   

Colleen's past drug use.  The superior court acknowledged that Colleen used drugs in the  



                                                                                    

past, but it also cited testimony that she was in "full remission" and that she did not  



                                                                                 

"presently ha[ve] either a drug or alcohol problem."  Both Galanos and Colleen testified  



                                                                                                   

to that effect, and it was not clear error for the superior court to credit their testimony.  



                                                                     

                    Adam also argues that the court erred by ignoring testimony from 2009 that  



Colleen had attacked him in front of their son.  Adam apparently refers to the 2008  



                                                                                  

testimony of a neighbor who witnessed an argument between Adam and Colleen.  But  



the log notes from that earlier hearing indicate that while the neighbor saw both parties  



                                                               -11-                                                         6864
  


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

                   

shouting at each other, he "did not witness any physical stuff," nor did he "see anybody  



                                   

hit anybody."  Even if Adam had relied on this testimony during the custody trial -  and  



                                                                    

he does not claim that he did - it would not have been clear error for the superior court  

to reject it as evidence of domestic violence perpetrated by Colleen against Adam.14  



                                                                                                                      

                    Adam  appears  to  argue  in  addition  that  the  superior  court  erred  in  



concluding  that  the  domestic  violence  presumption  against  custody  applied  to  him,  



                                                                         

because in a hearing held after the custody trial Colleen admitted that Adam had never  



                                                  

physically assaulted her.  But if Adam hoped to attack the validity of the custody order  



based  on  newly  discovered  evidence,  the  proper  means  for  doing  so  was  through  a  



                                                                          

motion for either a new trial under Alaska Civil Rule 59 or relief from judgment under  



                                                                                                                                 15  

                                                                                      

Alaska Civil Rule 60(b).  This court will not weigh new evidence in the first instance. 



Any such motion would likely have been futile in any event; a successful post-judgment  



                                   

attack based on newly discovered evidence must present evidence that was not available  



                            16  

                                                   

at the time of trial,          and Colleen was present and testified at trial.  Adam did not cross- 



                                                                                                                         17  

                                                                                                                             The  

examine her because he had voluntarily absented himself from the proceedings. 



          14        The  superior  court  also   ruled  that  Adam  "waived  the  opportunity"  to  



present  allegations  of  domestic  violence  against  Colleen  "by  voluntarily  absenting  

himself from trial," an independent basis for rejecting Adam's argument on this issue.  



          15        See Millette at 261 (quoting Ebertz at 646).  



          16        See Alaska R. Civ. P. 60(b); State, ex rel. Palmer Supply Co. v. Walsh &  

                                                                                                                   

Co., 575 P.2d 1213, 1221 (Alaska 1978).  



          17        Again,  there  is  an  alternative  and  independent  basis  for  affirming  the  



superior court's decision of this issue:  Adam's claim that he never physically assaulted  

                                                            

Colleen is irrelevant because the court's finding that he had committed domestic violence  

rested on the incidents in which he destroyed her property and placed her in fear  of  

                                                                                                    

physical injury.  See, e.g., Stephanie F. v. George C., 270 P.3d 737, 750 n.35 (Alaska  

                                                                                          

2012) ("Placing another person in fear of imminent physical injury 'by words or other  

                                                                                              

                                                                                                               (continued...)  



                                                              -12-                                                         6864
  


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

superior court did not err in its application of the statutory presumption against Adam.  



          D.	      The Superior Court Did Not Abuse Its Discretion By Requiring That  

                                                                               

                   Adam         Undergo         A     Psychological           Evaluation          Before        Having  

                   Unsupervised Visitation.  



                   Adam takes issue with the superior court's requirement that he undergo a  

                                                                                                          



psychological evaluation before he is allowed to have unsupervised visitation with his  

                                                                                                   



son. While not directly refuting the reasons for this requirement, Adam contends that the  

                                                                   



superior court showed bias when it failed to impose a similar requirement on Colleen.  

                                  



                   This argument is without merit for two reasons.  First, Colleen had already  

                                                                                       



undergone  a  psychological  evaluation  voluntarily,  after  the  custody  investigator  



recommended that each parent have one.  Adam refused.  Second,  the court's other  



findings about the parents' relative capacities to care for their son justified the court's  



                                                                                        

continued concern.  The superior court found that Adam was likely to surround his son  



                                                                                                        

with "an atmosphere of conflict, paranoia, upset, anger[,] and stress if [he did] not obtain  



                                                  

mental health treatment," whereas the court credited Galanos's testimony that there were  



"no concerns about Ms. Sackinger's capability or willingness to meet[] [the child's]  



needs."  The court's imposition of this condition on Adam, and not on Colleen, was well  



supported by the evidence and not an abuse of discretion.    



                                                                                                            

          E.	      The Judge Did Not Abuse His Discretion By Denying The Motion To  

                   Disqualify Him.  



                   Finally, Adam argues that Judge Lyle should have disqualified himself  



because of his obvious bias against Adam, citing the judge's failure to order further  



                                                           

discovery from Colleen, his finding that Adam was faking the symptoms of his illness,  



and his reliance on Galanos's testimony about Adam's mental health.  Having made  



          17(...continued)  



conduct' is assault. . . . Assault is within the definition of 'domestic violence.' " (citing  

                                                                

AS 25.90.010 and AS 18.66.990(3)(A))).   



                                                           -13-	                                                       6864  


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

                                                                                                    

several unsuccessful attempts to recuse Judge Lyle before trial, Adam made another oral  



                                                                                 

request in the midst of trial, apparently in response to the judge's repeated observations  



                                                        

that Adam was feigning his illness and the judge's admonition that trial would continue  



                                                

regardless of whether Adam remained in the courtroom.  But "[d]isqualification was  



                                        

never intended to enable a discontented litigant to oust a judge because of adverse rulings  

           18  "Mere evidence that a judge has exercised his judicial discretion in a particular  

made."                                           



                                                                              19  

way is not sufficient to require disqualification."                               Having upheld the various rulings  



that Adam claims were the result of judicial bias, we conclude that the judge, under an  



objective standard, did not appear biased against Adam and did not abuse his discretion  

                                                                              



in declining to disqualify himself.  



V.         CONCLUSION  



                     We AFFIRM the superior court's custody decision.  



           18        Wasserman v. Bartholomew                     , 38 P.3d 1162, 1171 (Alaska 2002 )(footnote     



and internal quotation marks omitted).  



           19        State v. City of Anchorage, 513 P.2d 1104, 1112 (Alaska 1973), overruled  

                                                                                

on other grounds by State v. Alex, 646 P.2d 203, 208 n.4 (Alaska 1982) (alteration and  

                                                        

internal qutoation marks omitted).  

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