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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Green v. Parks (11/28/2014) sp-6971

Green v. Parks (11/28/2014) sp-6971

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

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

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

                                                                                        

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                    THE SUPREME COURT OF THE STATE OF ALASKA  



JASON ROBERT GREEN,                                     )  

                                                        )        Supreme Court No. S-15382  

                            Appellant,                  )  

                                                        )        Superior Court No. 3VA-13-00035 CI  

                   v.                                   )  

                                                        )        O P I N I O N  

COURTNEY NICKOLE PARKS,                                 )  

                                                        )        No. 6971 - November 28, 2014  

                            Appellee.                   )  

                                                        )  



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

                                                                    

                   Judicial District, Valdez, Daniel Schally, Judge pro tem.  



                   Appearances:    Jason R. Green, pro se, Valdez, Appellant.  

                                                                        

                                          

                   No appearance by Appellee.  



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

                                                                                     

                   Bolger, Justices.   



                   MAASSEN, Justice.  



I.       INTRODUCTION  



                   Jason Green and Courtney Parks disputed custody of their infant daughter.  



The superior court awarded joint legal custody but gave Courtney primary physical  



custody  and  the  "final  say"  if  the  parties  could  not  agree  on  issues  of  their  child's  



welfare.  Jason appeals the court's award of custody, a condition that he not consume any  

                                                                                                        



alcohol before or during visitation, and the order that he pay all visitation-related travel  

                                    



expenses. We affirm the custody award and the allocation of visitation expenses, but we  

                      


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

remand for reconsideration of whether the evidence supports the no-alcohol condition  



on Jason's visitation.  



II.       FACTS AND PROCEEDINGS  



                    Jason Green and Courtney Parks had a daughter in March 2013.  Each  



                                                       1  

                                                          Shortly thereafter, without prior notice to Jason,   

parent filed a complaint for custody.  



Courtney moved to Florida with the child.  



                                                                                                            

                    The superior court held an evidentiary hearing in October 2013.  Courtney  



presented evidence that Jason was controlling and emotionally abusive.  Jason presented  



                                                  

evidence that Courtney was not allowing his mother, who also lived in Florida, to have  



reasonable access to their daughter.  



                                                                                        

                    At the end of the hearing the superior court made oral findings.  It found  



                                                                                          

that the presumption in favor of joint legal custody had not been overcome, but that due  



                                                                                 

to the parents' serious difficulties in communicating, Courtney would have the final say  



in decisions about their daughter's well-being if the parties could not otherwise agree.  



                                                                  

The court also found that Jason's behavior toward Courtney did not rise to the level of  



domestic violence, but that it was controlling and demeaning and was relevant to the  



                                                                  

custody  determination  in  the  context  of  Jason's  ability  to  provide  for  the  child's  



                                   

emotional and mental needs.  It found that Courtney was "defensive" toward Jason and  



                   

his mother, which interfered with her ability to encourage a close relationship between  



                                                 

Jason and their daughter.  But the court concluded that the child had been living in a  



                                                                                     

stable environment with Courtney, Courtney had been able to meet her needs, and no  



                                                                                               

other  factors  weighed  against  awarding  Courtney  custody.                                The  court  consequently  



ordered that Courtney retain primary physical custody.    



          1         Courtney withdrew her complaint a day after filing it.  



                                                               -2-                                                         6971
  


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                   The court's subsequent written visitation order granted Jason approximately  



15 days of visitation in Florida each year until their daughter is old enough to travel more  



                                                                                                               

often.  Among other provisions, the order restricted Jason's use of alcohol during and  



                                                 

immediately preceding his visits.  The written child support order, entered concurrently,  



                                                                                                                 

contains  another  provision  relevant  to  this  appeal:    that  "Father  will  pay  all  travel  



expenses relating to visitation."   



                   Jason appeals.  



III.      STANDARDS OF REVIEW  



                                                                                            

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

              2  "We will not set aside the superior court's child custody determination unless  

custody."                                



                                                                                                       3  

its factual  findings are clearly erroneous or it abused its discretion."   "A finding is  

                 



clearly erroneous when our 'review of the entire record leaves us with a definite and firm  

                                                                4  We grant particular deference to the trial  

conviction that a mistake has been made.' "                                                                     



court's factual findings when they are based "primarily on oral testimony, because the  

                                                                                              



trial court, not this court, judges the credibility of witnesses and weighs conflicting  

                        



                5  

evidence."     In  a  child  custody  case,  we  find  abuse  of  discretion  "if  the  trial  court  



          2        Limeres v. Limeres , 320 P.3d 291, 295-96 (Alaska 2014) (citing                              Cusack v.  



Cusack, 202 P.3d 1156, 1158 (Alaska 2009)).  



          3        Id. at 296 (citing Cusak, 202 P.3d at 1159).  



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



          5        Id.  (quoting  Sheffield  v.  Sheffield,  265  P.3d  332,  335  (Alaska  2011))  



(internal quotation marks omitted) .  



                                                             -3-                                                       6971
  


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considered  improper  factors  or  improperly  weighed  certain  factors  in  making  its  

                                                                                  

determination."6  



                                                    

                   Child support awards and the allocation of travel expenses are reviewed for  

abuse of discretion.7  



IV.	      DISCUSSION  



                   Jason makes three arguments on  appeal:  that the court erred (1) in its  

                                                                      



weighing of the statutory best interest factors in the determination of custody; (2) when  

                                                                                                                  



it prohibited Jason from consuming alcohol before or during his visits with his daughter;  



and (3) when it ordered Jason to pay all travel expenses relating to visitation.  



          A.	       The  Court  Did  Not  Abuse  Its  Discretion  In  Awarding  Primary  

                   Physical Custody To Courtney.  



                   Jason argues that the superior court failed to comply with AS 25.24.150(c)  

                                              



in making its custody determination, pointing to two factors he believes were given  

                 



inadequate weight.  First, he argues that the court "did not consider that [Courtney] had  

                                                                                      



moved between four homes in the six months preceding final judgment as a factor in  

                                  8    But  Jason  presented  no  evidence  of  this  at  trial,  whereas  

[AS]  25.24.150(c)(5)."     



Courtney  testified  that  at  the  time  of  trial  she  and  her  daughter  were  living  with  

                                                       



Courtney's father and stepmother, who assisted with childcare when she was at work or  

                                                                                                                    



in class.   The court found that Courtney and her daughter had been living in a stable  

               



environment, and that though Jason could also provide a stable home in Alaska, it was  

                                                      



not in the child's best interests to leave her current stable environment.  This finding is  



          6        Id. (citing Cusack, 202 P.3d at 1158).  



          7        Ronny M. v. Nanette H., 303 P.3d 392, 399-400 (Alaska 2013).  



          8         Subsection (c)(5) requires consideration of "the length of time the child has     



lived in a stable, satisfactory environment and the desirability of maintaining continuity."  



                                                             -4-	                                                      6971
  


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

                                                                                                                           

not  clearly  erroneous  given  the  evidence,  and  the  superior  court  did  not  abuse  its  



discretion in concluding that it favored Courtney.  



                     Second, Jason contends that the superior court failed to consider Courtney's  



                                                                                                         

unannounced move to Florida with their daughter as evidence of her unwillingness to  



"facilitate and encourage a close and continuing relationship between the other parent  



                                                                   

and the child" under AS 25.24.150(c)(6). But the superior court did consider this factor,  



                                                                                                                9  

and in fact identified it as one of the most relevant factors in the case.   Although the  



                                                                                                                  

superior court found, as Jason argues, that Courtney left Alaska without giving him any  



forewarning, the court also found that she had good reasons to leave:  her emotionally  



                                                                        

unhealthy relationship with Jason in Alaska, and her family and school in Florida.  The  



court also found that Courtney's reluctance to allow Jason's family to spend time with  



                                 

their  daughter  was  understandable  to  a  certain  extent,  given  Courtney's  difficult  



relationship with Jason; but it did cause the court to question whether Courtney would  



                                                                                                        

be able to foster a close relationship between Jason and the child.  Ultimately, however,  



the court found that Jason's controlling behavior was "a strike against" awarding him  



                                                                            

custody because it demonstrated that he was not able to fully provide for their daughter's  



                                                                                     10  

                                                                                                                 

social  and  mental  needs  under  AS  25.24.150(c)(2).                                   The  superior  court  carefully  



           9         The superior court did not address all the statutory best interest factors, but       



it was not required to do so.   The court's findings must simply give "a clear indication                    

of the factors . . . the superior court considered important in exercising its discretion or   

allow us to glean from the record what considerations were involved."                                            Ronny M., 303  

P.3d at 402 (quoting Chesser v. Chesser-Witmer, 178 P.3d 1154, 1158 (Alaska 2008)).  

The court's oral findings here are sufficient.  



           10        Subsection (c)(2) requires consideration of "the capability and desire of  



each parent to meet" the child's physical, emotional, mental, religious, and social needs.  



                                                                  -5-                                                            6971
  


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

weighed  these  two  relevant  factors  and  concluded  that  the  balance  slightly  favored  



Courtney.  This was not an abuse of discretion.   



                                                                                                              

          B.	       Support For The Restriction On Jason's Consumption Of Alcohol Is  

                    Not Evident In The Record.  



                                                                                                      

                    In its visitation order the superior court ordered that Jason not consume  



                                                                                        

alcohol during his visits with his daughter or in the eight hours immediately preceding  



them.  Jason argues that this restriction is "without any substantial evidence regarding  



                                

an issue of alcohol abuse or dependency" and that it places "an unfounded negative  



                                                                                                                  

stigma upon" him which "could be detrimental" to his career in the United States Coast  



Guard.  



                                                         

                    In Mariscal v. Watkins , we held that "[p]rovisions of a custody award must  



be  supported  by  findings  of  fact  demonstrating  that  the  superior  court  properly  



                                                                    11  

                                                                                                       

considered  the  best  interests  of  the  child."                        Without  evidence  of  how  a  parent's  



                                                                                                   

behavior affects the parent's relationship with the child, we have "cautioned trial courts  



                                                             

against  reference  to  such  [behavioral]  factors  '[t]o  avoid  even  the  suggestion  that  a  



                                                                                                                                 12  

              

custody award stems from a life style conflict between a trial judge and a parent.' " 



Relying on these principles, in Mariscal we vacated the conditions in the custody order  

                                                              



that prohibited the parent from consuming alcohol while the child was in the parent's  

                                                                   



custody, driving with the child within 12 hours of consuming any alcohol, and exposing  

                                                                            



                                                                     13  

the child to "inappropriate sexual behavior."                            We noted that the superior court had  



made  no  factual  findings  about  the  parent's  sexual  conduct  and  had  made  specific  



          11        914 P.2d 219, 222 (Alaska 1996).  



          12        Id. (quoting Craig v. McBride, 639 P.2d 303, 306 (Alaska 1982)) (alteration  



in original).  



          13	       Id.  



                                                               -6-	                                                        6971
  


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findings that there was no evidence of alcohol abuse; the challenged conditions therefore   

                                                                                              14   We  concluded  that  

did  not  appear  to  be  "related  to  [the  child's]  best  interests."      



imposing the conditions in the absence of a supporting factual record was an abuse of  

                

discretion.15  



                    The same principles apply to the visitation order now under review.  There  

                                                   



was no evidence that Jason's alcohol use "directly affects the emotional or physical well- 



              16  

being of"        his child, and the court made no specific findings on the subject.  Remand is  



                                                                                              

therefore appropriate so the superior court can either vacate the challenged condition or  



make additional findings to support it.   



          C.        The Court Did Not Err In Ordering Jason To Pay Visitation Expenses.  



                                                                                                     

                    Jason argues that the court "placed an undue hardship" on him by requiring  



                       

him to pay all travel expenses for visitation, when it was Courtney's choice to leave  



                                                          

Alaska, forcing him to travel to see his daughter.  Alaska Civil Rule 90.3(g) requires the  



                                                      

court to "allocate reasonable travel expenses which are necessary to exercise visitation  



between the parties as may be just and proper for them to contribute."  Although the  



                                                             

court did not explain its allocation, there is support in the record for the requirement that  



Jason pay all visitation expenses.   As a Coast Guardsman he has an adjusted annual  



income of approximately $56,000, whereas Courtney has no reported income at all.  



          14        Id.  



          15        Id.  



          16        AS 25.24.150(c)(8).  



                                                              -7-                                                        6971
  


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

                                                                                                     

Under the circumstances, it was not an abuse of discretion to allocate all visitation costs  

to Jason.17  



V.        CONCLUSION  



                   We  REMAND  for  the  superior  court  to  reconsider  the  alcohol-related  



                                                                                              

condition in the visitation order in accordance with this opinion. We otherwise AFFIRM  



the superior court's custody, visitation, and child support orders.  



          17        Compare   Kristina  B.  v.  Edward  B. ,  329  P.3d  202,  213  (Alaska  2014)  



(upholding the superior court's unexplained allocation of all visitation expenses to the   

mother where there was evidence the mother had "exaggerated the cost of her travel and                           

that the true monthly cost of the visits was less than $40," and where the mother had  

"missed a number of visits without prior notice, causing [the father] to incur the cost and  

                                                                                                   

inconvenience of driving the child to the pickup point"), with Ronny M. v. Nanette H.,  

                                                                                            

303  P.3d  392,  407  (Alaska  2013)  (finding  an  abuse  of  discretion  in  allocating  all  

                                                                                                           

visitation expenses to the father where the mother earned "significantly more," "she  

ha[d]  the  potential  to  earn  additional  income,"  and  she  had  access  to  the  children's  

Permanent Fund Dividends).  



                                                             -8-                                                          6971  

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