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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Riggs v. Coonradt (10/16/2014) sp-6961

Riggs v. Coonradt (10/16/2014) sp-6961

         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  



KELLI M. RIGGS,                                        )  

                                                       )         Supreme Court No. S-15172  

                            Appellant,                 )  

                                                       )         Superior Court No. 1SI-05-00214 CI  

                  v.                                   )  

                                                       )         O P I N I O N  

ERIC E. COONRADT,                                      )  

                                                       )         No. 6961 - October 16, 2014  

                            Appellee.                  )  

                                                       )  



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

                                                                                     

                   Judicial District, Sitka, David V. George, Judge.  



                  Appearances:  Teka K. Lamade, Sitka, for Appellant.  David  

                  Avraham Voluck, Sitka, for Appellee.   



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

                                                                        

                  Bolger, Justices.   



                  MAASSEN, Justice.  



I.       INTRODUCTION  



                  A mother appeals from a modified decree involving the custody of her three  

                                                                                                              



children.  The superior court decided that the parents' inability to communicate justified  

                                                                           



a modification of the existing joint-custody arrangement, and that the best interests of the  

                                                                               



children favored an award of sole legal custody to their father.  We conclude that the  

                                                                                                 



superior court did not abuse its discretion in making these decisions and therefore affirm  

                                                                                



them.  We also affirm, as within the superior court's discretion, its allocation of the costs  

                                                                         


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

of  the  court-appointed  guardian  ad  litem.    We  remand  for  the  superior  court's  



clarification of one issue:  whether it meant to include, in its final modified decree, a  



                                                                          

change to the father's weekend visitation schedule made by the attorney who drafted the  



decree.  



II.       FACTS AND PROCEEDINGS  



                   Kelli  Riggs  and  Eric  Coonradt  were  married  and  divorced  twice,  first  



marrying in 2000 and divorcing for the second time in 2006.  They have three minor  



                                                                                     

children.  Their relationship deteriorated after their second divorce, but they successfully  



                                 

negotiated  a  custody  agreement.    Under  the  agreement  they  shared  custody  on  an  



                                                                                   

alternating two-week basis, and the non-custodial parent had dinner with the children on  



Wednesday evenings.  



                                                                                          

                   Despite the agreement, tensions between Kelli and Eric persisted:  there  



were disputes over child support, allegations that Kelli's nephew sexually abused the  

parties' youngest son, allegations that Kelli exposed the children to an abusive partner,1  



                                                      

and Kelli's arrest for drunk driving. In September 2011 Eric moved for primary physical  



                                                                                                       

and sole legal custody of the children, alleging that Kelli was exposing them to violence  



                                                                         

and substance abuse.  The superior court found that a neutral party was necessary to  



advocate on the children's behalf and in March 2012 appointed a guardian ad litem.  



                   The superior court held a two-day evidentiary hearing in January 2013 and  



at its close issued an oral decree.  Finding that the parties' inability to cooperate required  



                                                                                     

a modification of custody, and weighing what it  found  to be the most relevant best  



                                                                                                                         

interest factors, the court determined that Eric should be awarded sole legal custody.  The  



                                                                                            

court also found that the alternating two-week system did not provide the stability that  



          1        Kelli was engaged to a different partner by the time of trial.  



                                                             -2 -                                                         6961  


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

the children required, especially during the school year; it therefore modified the physical  



                                          

custody arrangement so that the children would live with Eric for most of the school year  



and with Kelli for most of the summer.   



                                         

                   Kelli was not represented by counsel during the hearing, and the superior  



                                                                       

court asked Eric's attorney to draft a proposed modified custody decree reflecting its  



                                                                                                             

findings and conclusions.  After Kelli had a chance to respond to the first draft, Eric's  



                                                                                  

attorney  submitted  a  revised  version  of  the  modified  decree.    Kelli,  through  newly  



                                                                                                    

retained counsel, pointed out a change in the revised draft: the end of Eric's summertime  



weekend visits had been unilaterally extended from Sunday evening to Monday morning.  



The court signed the revised version of the modified decree without expressly addressing  



the change.  



                                                                                                                      

                   Kelli appeals, arguing that the superior court erred in four ways: (1) by  



concluding that a substantial change in circumstances justified a modification of custody;  



                                                                                          

(2) by finding that the best interest factors favored a grant of sole legal custody to Eric;  



                                                          

(3) by allocating to Kelli 20 percent of the guardian ad litem's fees; and (4) by signing  



the custody decree including the late-added change to Eric's visitation schedule.  



III.      STANDARDS OF REVIEW  



                   We  review  de  novo  a  superior  court's  decision  that  there  has  been  a  



material  change  in  circumstances  justifying  a  modification  of  a  prior  child  custody  

order.2  



                    Superior courts have broad discretion in child custody decisions, and we  



will reverse only if findings of fact are clearly erroneous or if the superior court abused  

                                                                                          



          2        Frackman v. Enzor , 327 P.3d 878, 882 (Alaska 2014).  



                                                            -3 -                                                          6961  


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

its discretion.3  "A factual finding is clearly erroneous when a review of the record leaves  

                         

the court with a definite and firm conviction that the superior court has made a mistake."4  

                                                                                



"An abuse of discretion exists where the superior court 'considered improper factors in  

                                      



making its custody determination, failed to consider statutorily mandated factors, or  



                                                                                                                         5  

assigned disproportionate weight to particular factors while ignoring others.' "   



IV.	      DISCUSSION  



          A.	        The  Superior  Court  Did  Not  Err  When  It  Determined  That  A  

                     Substantial  Change  In  Circumstances  Warranted  Modification  of  

                     Custody.  



                    Kelli contends that Eric failed to demonstrate a change in circumstances  



sufficient to justify a modification of custody under AS 25.20.110(a).  She notes that  



Eric's motion to modify was based on allegations of violence and substance abuse which  

                                                                                                                   



the superior court did not find substantiated.  She argues that the superior court relied  

       



instead on the children's academic performance, which she contends had not changed  



since the earlier order and thus could not justify modification.   



                                                         

                    But the superior court did not base its modification decision on either of  



these possible grounds; rather, it relied on evidence that the parents could not effectively  



                                        

communicate.  The court found "a complete breakdown in communication between the  



                                                                                                           

[p]arties, making joint legal custody impracticable and injurious to the children's overall  



well-being."  Kelli admits that legal custody was not working because of the parents'  



          3	        Ronny M. v. Nanette H.              , 303 P.3d 392, 399 (Alaska 2013) (citing                     Hamilton  



v. Hamilton , 42 P.3d 1107, 1111 (Alaska 2002)).  



          4         Id.  (quoting  Fardig  v.  Fardig ,  56  P.3d  9,  11  (Alaska  2002))  (internal  

                                                                                               

quotation marks omitted).  



          5         Id. (quoting Siekawitch v. Siekawitch, 956 P.2d 447, 449 (Alaska 1998)).  

                                                                                               



                                                                -4 -	                                                        6961
  


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

inability to cooperate, though she contends it was one-sided; in her brief she lays out  



                                                                                                                   

what  she  portrays  as  Eric's  failures  to  communicate  about  the  children.    But  she  



                                                                                                               

acknowledged in her testimony in the superior court that "it's partly [Eric's] fault and it's  



                                                                                      

partly my fault. . . . It's lack of communication."  And  what matters to a change in  



                          

circumstances is not which parent is most at fault, but whether the parents are able to  



communicate in their children's interests - and here they indisputably were not.   



                                                                                                                  

                    A "continued lack of cooperation" between parents may be a change in  



                                                                                                                       6  

                                                                                                                          And  

circumstances sufficient to justify a modification of custody under AS 25.20.110. 



in  T.M.C. v. S.A.C., we upheld the superior court's reliance on the parents' sustained  



                                                                                                             

non-cooperation to reopen the custody arrangement even where, as here, neither parent  

had raised it as grounds for modification.7  Although Eric's motion to modify was based  



                                                                                

on other grounds, the superior court did not err when it relied instead on the "complete  



breakdown in communication" that has substantial support in the evidence.  



                                                                              

          B.	       The Superior Court Did Not Abuse Its Discretion When It Awarded  

                    Sole Legal Custody To Eric.  



                    Kelli  contends  that  the  superior  court  abused  its  discretion  when,  in  



                                                                       

considering the best interests of the children, it granted sole legal custody to Eric, who  



                                                                        

Kelli asserts was likely to withhold information about the children.  She points to facts  



                                                                                                                

supporting Eric's "history of withholding or hiding information from [her] [and Eric's]  



             

general uncommunicativeness."  She also argues that the court did not give enough  



                                                                                                         

weight to her own greater availability for the children during the day due to her more  



flexible schedule.  



          6         T.M.C. v. S.A.C., 858 P.2d 315, 319 (Alaska 1993).  



          7         Id. at 318-19.  



                                                              -5 -                                                          6961  


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

                      Having found that the parents' inability to communicate made joint legal   



custody unworkable, the superior court had to award sole legal custody to one parent or       



                8  

                   The court found neither parent to be an ideal choice.  It based its decision  

the other.                                      



primarily on what it found to be Eric's clearer recognition of the children's educational  



                                                                                                                              

and emotional needs.  The court "did not believe [Kelli] appreciates the dire straits of  



                         

these  children  educationally  as  much  as  [Eric]  does,"  and  it  found  that  Eric  "more  



                                                                                                            

accurately and adequately considered the [emotional] needs of his youngest son."  The  



                                                                                                                          

court acknowledged the possibility that Eric might "establish a wall to keep [Kelli] out"  



                                                                                               

if he was awarded sole legal custody.  But Kelli, the court found, was prone "to use her  



                                                                                                    

custody privileges as a sword" against Eric, and this attitude was "more destructive to  



                     

the parental relationship than ignoring it."  Supporting the court's finding was testimony  



                                                                                        

that Kelli distrusted the police department, the Office of Children's Services, and local  



counseling facilities, and that she therefore limited contact between her children and the  



                                                                                                         

services that were likely to benefit them.  On balance, the court viewed the likelihood  



                

that Eric would try to shut Kelli out as less harmful to the children than Kelli's desire to  



use custody as a weapon against Eric.  



                      It  is  true,  as  Kelli  argues,  that  her  day-to-day  availability  is  a  relevant  



                                                                                                                                           9  

                                                                                  

consideration, as it could contribute to the stability of the children's home environment. 



But the court was aware of Kelli's schedule and still found this benefit outweighed by  



other factors, concluding that the children's educational and emotional needs would be  

                                                                        



better served by Eric, especially during the school year.  



           8          See Peterson v. Swarthout, 214 P.3d 332, 336-37 (Alaska 2009).  



           9         Farrell v. Farrell , 819 P.3d 896, 899 (Alaska 1991) (approving of the  



superior court's consideration a parent's day-to-day availability).  



                                                                   -6 -                                                                 6961  


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

                   "We give 'particular deference' to the trial court's factual findings when  



                                                                                                            

they  are  based  primarily  on  oral  testimony,  because  the  trial  court,  not  this  court,  



performs the function of judging the credibility of witnesses and weighing conflicting  



               10  

                                                                                                

evidence."         There is substantial evidence in the record to support the superior court's  



                        

findings of fact, which are not clearly erroneous.  Presented with a difficult choice, the  



                                                                                                

superior court reached a reasonably balanced custody arrangement that falls within the  



bounds of its broad discretion.  



                                                   

          C.	      The Superior Court Did Not Abuse Its Discretion When It Allocated  

                   Kelli A Portion Of The Guardian Ad Litem's Fees.  



                   Kelli argues that the superior court abused its discretion when it allocated  



to  her  20  percent  of  the  fees  charged  by  the  guardian  ad  litem  (GAL)  assigned  to  



advocate for the best interests of the children.  She argues she should not have to bear  



any of the expense, given that it was Eric who demanded the GAL and committed to bear  



                                                                  

the cost; that "[b]ut for Eric's disparately high income, the appointment could have been  



made at public expense"; and that she was financially stressed.  



                                                        

                   We have already rejected the argument that only the party who requests a  



                                                      11  

                                                          The appointment of a GAL is ultimately the  

GAL may be held liable for the fees. 

                                                                              12   In this case the superior court  

court's responsibility and is committed to its discretion.                                         



found the appointment to be "necessary and proper to protect the best interests of the  



          10       Ebertz v. Ebertz , 113 P.2d 643, 646 (Alaska 2005) (quoting In re Adoption  



of A.F.M., 15 P.3d 258, 262 (Alaska 2001)).  



          11       Siggelkow v. Siggelkow, 643 P.2d 985, 989-90 (Alaska 1982).  



          12       AS  25.24.310;  see  also  Thomas  v.  Thomas,  171  P.3d  98,  104  (Alaska  



2007); H.P.A. v. S.C.A. , 704 P.2d 205, 212 (Alaska 1985) (citing Siggelkow, 643 P.2d  

                                    

at 989-90).  



                                                           -7 -	                                                   6961
  


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

minor children" due to "the extreme tension between the parents and the need for a                                             



neutral party to independently investigate and present evidence and advocate on behalf                            



of the children's best interests."  The children's best interests are the responsibility of  



both  parents  equally.    That  it  was  Eric  who  filed  the  motion  prompting  the  court's  



appointment of the GAL is irrelevant to the issue of the GAL's fees.  



                                                                                                                                       

                      Nor was Kelli's financial situation such as to necessarily relieve her of her  



                                                                                                           

share of the expense.  Alaska Statute 25.24.310 and Alaska Rule of Civil Procedure 90.7  



                                                           

govern a GAL's appointment and payment.  We have held that the statute "generally  



precludes the superior court from taxing only one parent with the costs of a guardian ad  

                                                                          13 and  Rule 90.7(m) provides that the costs  

litem where both parents can afford the cost,"                                                 



should be shared equally "unless the court finds good cause to change this allocation."  

                                                                                                                      



In H.P.A. v. S.C.A. , for instance, we affirmed the superior court's decision to allocate to  



the wife one-third of the GAL's costs where she could "reasonably afford to pay [the]  



                14  

amount."             



                      In this case, the superior court expressly considered the disparity in the  



parents' incomes in calculating its allocation of the GAL's fees.  The court had earlier  



                                                                                                     

held Eric solely responsible for the GAL's $1,500 retainer.  Of the remaining fees, the  



                                                     

court assigned Eric 80 percent ($4,689.84) and Kelli 20 percent ($1,172.46), based on  

                                     15   Implicit in this allocation is a finding of good cause to deviate  

                                                                                     

their relative incomes.  



           13         Siggelkow,  643  P.2d  at  990.    The  statute  at  issue  in  Siggelkow  was  



AS 09.65.130, later renumbered as AS 25.24.310.  



           14         H.P.A. , 704 P.2d at 212.  



           15         The court extrapolated the parties' incomes from their paystubs, W-2s, and  



the affidavits required by Civil Rule 90.3.  



                                                                     -8 -                                                              6961
  


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

                                                                               

from the 50/50 allocation contemplated by Rule 90.7(m).  The court did not abuse its  



discretion in making this allocation.  



                                                                                                                          

           D.	       The Scrivener's Change To The Modified Custody Decree Should Be  

                     Addressed On Remand.  



                                                                               

                     Kelli argues that the superior court abused its discretion when it signed a  



proposed  modified  custody  decree  allowing  Eric  to  return  the  children  on  Monday  



                                                                                                  

mornings following his summertime weekend visits; this was a departure from an earlier  



                                                               

version of the modified decree, which required the children to be returned on Sunday  



                                               

evenings.    Kelli  argues  that the  alteration  was  also  a  substantial  departure  from  the  



                              16  

                                                                                               

court's oral decree              and that it lacks sufficient explanation in the record.  We agree that  



the issue needs clarification.  



                                                                        

                     The superior court, after giving its findings orally, assigned Eric's attorney  



                                                                                                       

the task of drafting the modified custody decree.  The attorney's first draft defined both  



                                                                           

parties' visitation weekends in the same way:  beginning at 5:00 p.m Friday and ending  



                                                                                                                    

at 5:00 p.m. Sunday.  Kelli filed objections related to other aspects of the decree and the  



court ruled on them; Eric's attorney then submitted a revised version of the modified  



                                                                         

decree.  But the revised version also made the change at issue here:  it changed the timing  



of Eric's weekend visits so that they extended to Monday mornings.  



                                      

                     Kelli had represented herself at the modification hearing but retained a  



lawyer afterward.  Through her new lawyer, she immediately filed a notice calling the  



                                                                                               

superior court's attention to the change in visitation timing, which she suggested was "a  



                             

drafting errata."   The court did not respond to Kelli's notice, however; it signed the  



           16        There is no direct conflict with the court's oral findings and conclusions.   



The court explicitly stated the timing of Kelli's weekend visits with the children:  5:00             

p.m. Friday to 5:00 p.m. Sunday.  It went on to assign certain summertime weekends to       

Eric, but it did not specify the hours for those visits.  



                                                                  -9 -	                                                           6961
  


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

revised version of the modified custody decree as submitted, with a Monday morning  



return for Eric's summer weekend visits.   



                                     

                     We  have  held  that  "the  superior  court  is  not  required  to  articulate  its  



                                                                                                                      17  

                                                                                                                            But this  

thoughts on every issue it considers" when it makes decisions about custody. 



                                                                                                             

specific issue was not discussed at trial, and the different definitions of Eric's and Kelli's  



                                                                                    

weekends did not surface until the revised version of the modified decree, after Kelli's  



                                                                                                                    

objections  to  the  first  draft  had  been  ruled  on  and  incorporated  into  the  second.  



                                                                                  

Moreover, although notice to the other side is not at issue here because Kelli's attorney  



                                                          

saw the change, "[n]ew or additional matter should not have been included in the written  



findings without giving [the other side] advance notice of the changes and an opportunity  

to object."18  



                     We  have  repeatedly  observed  that  "[c]ounsel  agreeing  to  draft  written  



findings  and  conclusions  for  the  superior  court  is  essentially  a  scribe  who  must  

                                                 

                                                                                                       19   Furthermore, "[i]f  

accurately memorialize the court's oral findings and conclusions."  

                                                                                                            



[the drafting] counsel has questions about what a court has ruled or perceives ambiguity,  

                                                                  



                                                                                                          20  

the proper course is to flag the issue so that the court may revisit it."                                     It is particularly  

                                                                                           



          17         Peterson v. Swarthout , 214 P.3d 332, 338 (Alaska 2009) (citing                                      Thomas,  



171 P.3d at 102-03); AS 25.20.110.  



          18         Ogden v. Ogden, 39 P.3d 513, 519 (Alaska 2001) (citation omitted).  



          19  

                                                                        

                     McDougall v. Lumpkin , 11 P.3d 990, 998 (Alaska 2000); see also Ogden ,  

39 P.3d at 518.  



          20         McDougall , 11 P.3d at 998; see also Ogden , 39 P.3d at 519 ("[I]f Julie's  

                                                                                                             

counsel encountered questions or uncertainties in drafting the findings and conclusions,  

                                                                                           

she  should  have  at  least  specified  in  her  proposed  order  those  findings  that  were  

                                                               

extrapolations from the court's oral remarks or otherwise were not mentioned by the  

                                 

                                                                                                                  (continued...)  



                                                                -10 -                                                              6961  


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

                                                                                              

important that the drafting counsel take care "to ensure faithful and accurate renditions  

of the court's rulings" when the other party is unrepresented;21 here, although Kelli  



obtained counsel after trial, the order being transcribed had been stated first on the record  



                                 

at the hearing, when Kelli was proceeding pro se and had no attorney of her own to  



independently recollect or record the substance of the court's rulings.  



                                                                                                                  

                    Although Kelli's new attorney immediately caught the deviation and called  



                                                                                                      

it to the court's attention, the circumstances leave us in some doubt as to whether the  



                                                                                                       

court intended to incorporate it into the signed decree.  It is the role of the superior court  



                                                                                                                      22  

                                                                                                                          We  

to ensure that any decree drafted by a party conforms to the court's own rulings. 



                                                                 

remand the issue to the superior court for an express adoption or rejection of Eric's  



proposal that summer weekend visits extend to Monday mornings.  



V.        CONCLUSION  



                                           

                    We REMAND for the superior court to expressly adopt or reject the change  



                                                      

to Eric's weekend visitation in the second draft of the modified custody decree.  We  



AFFIRM the superior court's orders in all other respects.  



          20(...continued)  



court.").  



          21       McDougall , 11 P.3d at 998.  



          22       Id. ("An attorney's failure to submit written proposed findings conforming  



to the oral findings does not relieve a trial court of responsibility for confirming that the  

                                                                          

written findings reflect the court's thinking."); Indus. Indem. Co. v. Wick Constr. Co. ,  

680 P.2d 1100, 1108 (Alaska 1984) ("A trial court is . . . entitled to adopt findings and  

                                                                                                              

conclusions prepared by counsel, so long as they reflect the court's independent view of  

                                                                 

the weight of the evidence." ) (discussing Alaska Civil Rule 78(a)).  



                                                            -11 -                                                          6961  

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