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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Sarah D. v. John D. (6/12/2015) sp-7015

Sarah D. v. John D. (6/12/2015) sp-7015

         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  



SARAH D.,                                                )  

                                                         )     Supreme Court No. S-15288  

                           Appellant,                    )  

                                                         )     Superior Court No. 3AN-12-11124 CI  

         v.	                                             )  

                                                         )     O P I N I O N  

JOHN D.,                                                 )  

                                                         )    No. 7015 - June 12, 2015  

                           Appellee.	                    )
  

                                                         )
  



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

                  Judicial District, Anchorage, Patrick J. McKay, Judge.  



                  Appearances:            Phyllis     A.    Shepherd,       Anchorage,        for  

                  Appellant.  Notice of nonparticipation filed by Kenneth M.  

                  Wasche, Kenneth M. Wasche, P.C., Anchorage, for Appellee.  



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

                               

                  Bolger, Justices.  



                  WINFREE, Justice.  



I.       INTRODUCTION  



                  Sarah D. and John D. separated shortly after their daughter turned three.  



Each  claimed that the other was abusive and obtained a short-term domestic violence  

         



protective order after they separated; they later stipulated to a mutual no-contact order  

                                                                                               



but violated it by continuing a sporadic romantic relationship.  They sharply contested  

                                                                                      



numerous domestic violence allegations and generally cast each other in a bad light  



throughout their divorce proceedings.  


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

                                                                                          

                    Sarah requested interim attorney's fees. After the superior court denied her  



                                                                                  

request, Sarah consented to her lawyer's withdrawal.  Sarah and John then agreed to a  



                                                           

property settlement.  Before litigating custody Sarah again requested interim attorney's  



                                                                                      

fees and twice filed continuance motions requesting time to obtain counsel.  Her motions  



                                 

were denied, and she appeared pro se throughout a four-day custody trial.  John's parents  



                                                                                              

helped pay for his lawyer, and he was represented at all times.  Over Sarah's objections,  



John's father was allowed to intervene as a party for visitation purposes.  



                    Finding John and Sarah's relationship dysfunctional, Sarah manipulative  



                                                                                                        

and guilty of one incident of domestic violence, and neither party credible, the court  



awarded  shared  physical  and  sole  legal  custody  to  John  and  gave  John's  father  



                                                                                                                      

unspecified visitation during John's custodial time.  Sarah appeals the court's denials of  



her requests for an interim fee award, trial continuances,  and to compel a witness's  



attendance  at  trial.    She  also  appeals  the  court's  orders  granting  the  grandfather  



                            

intervention  and  visitation  and  the  court's  domestic  violence  finding  and  custody  



                                                              

decision.  We vacate the order granting the grandfather visitation and otherwise affirm  



                                                                                         

all but the custody decision, remanding for more detailed findings and conclusions on  



domestic violence issues.  



II.       FACTS AND PROCEEDINGS  



                                                                                                                  

                    Sarah and John married in 2009 shortly after their daughter's birth.  Their  



daughter was three years old when they separated in November 2012.  At separation  



                                                               

Sarah and John each obtained an ex parte short-term domestic violence order against the  



                                    

other, and Sarah filed for divorce.  John was represented by counsel throughout the  



                                                        

proceedings, and Sarah had counsel until she consented to his withdrawal in mid-March  



2013.  



                                                                                                     

                    In December 2012 Sarah and John each petitioned for a long-term domestic  



                                                                        

violence protective order against the other, but then voluntarily withdrew their petitions  



                                                               -2-                                                         7015
  


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

and stipulated to a mutual no-contact order permitting them to text or email each other  



only about their daughter.  Neither John nor Sarah honored the no-contact order; indeed,  



                                                                          

until a month before the custody trial began in late May 2013 they routinely violated the  



order to have consensual sex.  



                                                                                                                

                    At the end of interim hearings in mid-January 2013 the parties agreed to a  



shared physical custody schedule.  The superior court ordered John to continue making  



                                                                        

mortgage payments on the marital home, where Sarah and the daughter remained, and  



John moved in with his parents.  The parties entered into a property settlement agreement  



                                                                                                        

in late March, and the court confirmed it a month later.  John was to keep the marital  



                                                                                                                   

home, but Sarah was to live there until May 31.   Therefore, for the bulk of the time  



                                                                                                                 

between their November 2012 separation and the late-May 2013 trial, John lived with  



his parents and Sarah continued to live rent-free in the marital home.  



                                                                              

                    In early April Sarah asked the superior court to postpone the May custody  



                                                                                                              

trial until September.  Sarah anticipated a qualified domestic relations order (QDRO) for  



                                                                                                         

her share of John's retirement but believed it would take "two to three months" before  



she would "actually have access to [those] funds."  She asked for the continuance so that  



                                                                        

she could obtain the funds, retain counsel, and allow her new counsel to prepare for  



       1  

trial.   John responded that Sarah had "consented to the withdrawal of her attorney in  



                                                                                         

March 2013" and that "inexcusable delay in employing new counsel" was not "a ground  



for continuance."  John pointed out that during the February scheduling conference Sarah  



          1         During  an  earlier  February  trial  scheduling  conference,  Sarah's  then- 



attorney  stated:    "Her  ability  to  proceed  and,  basically,  establish  funding  for  .  .  .  a  

custody trial is negligible right now, because she doesn't have the funds to do so.  I  

                                                                            

mean, she's probably going to be doing it alone if the court's going to proceed with  

custody.    I'm  already  in  arrears  and  I  can't  continue  to  do  that."    Sarah's  attorney  

indicated that he would accept compensation from "an early QDRO order" but noted that  

                                                                  

he did not yet have Sarah's consent to such an arrangement.  



                                                             -3-                                                        7015
  


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

had anticipated a May custody trial.  The court denied Sarah's motion for a continuance  



without comment.  



                      In late April the superior court issued a divorce decree, noting that the  



             

parties had agreed to proceed to trial over custody.  The court also issued Sarah a QDRO  



giving her a percentage of John's retirement benefit worth about $16,000.  



                     Also in late April John's stepfather, John L. D. (JL), sought grandparent  



                 

visitation with John and Sarah's daughter.  JL, who is retired, often watched John and  



                                                                                                

Sarah's daughter when they were working.  According to JL, "[h]e has cared for [his  



                                                         

granddaughter] on a frequent basis since her birth [and since] the parties have separated,  



                                                                         

both parties have continued to use [JL] as [a] caregiver."  JL argued that Sarah had tried  



                                                                       

to cut him out of the child's life, that he was a psychological parent to the child, and that  



it  was  "in  the  best  interests  of  [his  granddaughter]  to  enjoy  the  benefits  of  a  close  



                                                                      

relationship with extended family members by having regular, predictable contact."  The  



                                                      

court allowed JL's participation for the limited issue of grandparent contact with the  

                             2    Sarah  asked  the  superior  court  to  reconsider  JL's  intervention,  

parties'  daughter.     



arguing that the order "unnecessarily infring[ed] on the inherent rights of a good parent"  

                                                                                         



and that she had evidence that JL's "open hostility" toward her had a negative impact on  

                                                                                                              



her daughter.  The superior court denied the reconsideration motion at the beginning of  

                                             



trial.  



                                                                                     

                      In early May Sarah asked the superior court for either $10,000 in interim  



attorney's fees or a three-week continuance of the custody trial.  She argued that she had  



                                                        

no "funds to retain legal counsel" and that she was in the "final stages of retaining Pro  



                                                                                    

Bono Legal Services" but could not do so without a continuance.  Sarah argued that the  



           2         Although JL, acting pro se, requested to be joined as a party under Alaska       



Civil Rule 18, and the court granted his motion to join in part, we interpret JL's request  

as a motion to intervene under Rule 24 and treat it accordingly.  



                                                                   -4-                                                             7015
  


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

continuance was necessary for her to "have a chance to fairly present her side [of the  



                                                                                                          

case] and have it heard."   John responded that the parties' economic situations were  



                                

comparable and that Sarah already had received the QDRO and could have assigned the  



proceeds  to  her  former  attorney  in  lieu  of  payment.    John  noted  that  the  court  had  



rejected Sarah's April continuance request and that she should not be able to avoid  



               

litigation by simply hiring or attempting to hire a new attorney and claiming the new  



                                                                                       

attorney  needed  time  to  become  familiar  with  her  case.    At  a  mid-May  scheduling  



                                                                                                       

conference, the court indicated it likely would deny Sarah's motion.  Twenty days after  



                                                                                                  

the custody trial ended the court formally denied Sarah's requests for a continuance and  



attorney's fees.  



                    A week before trial Sarah sought to compel Sarah and John's marriage  



                                                                                                      

counselor to testify.  She noted that the superior court already had indicated such an  



order  would  be  proper  -  at  a  much  earlier  hearing  Sarah's  former  attorney  had  



mentioned that he planned to "seek a court order . . . to get [the marriage counselor's]  



                                                                

testimony," and the court had responded:  "Right.  You would probably get it."  She  



                                                                                                            

argued that the counselor's testimony would show that:  John possibly had neglected  



                                                                                                              

their child; during counseling John had said that his family would lie under oath for him;  



                                                                                         

and Sarah had never been violent toward John.  The court denied the motion the next  



day,  stating  that  Sarah  "may  subpoena  [the  witness]  and  then  move  to  enforce  or  



compel."  



                                                                                                    

                    Sarah and John litigated custody for four days in late May and early June  



                                                                                                         

2013.  After trial the superior court found that:  Sarah and John did not comprehend the  



dysfunctional nature of their relationship which "interfered in their ability to co-parent";  



                                                                                          

their "chaotic relationship" had the "potential for emotional abuse of [their daughter]";  



                                                                                      

but John "is more likely to disengage and maker healthier decisions for [their daughter]  



with his family support system," whereas Sarah "is manipulative and less capable of  



                                                              -5-                                                        7015
  


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

setting aside emotional factors when making decisions about [their   daughter's] best  



interest."  But the court also found both parents could meet their daughter's needs and     



"[b]oth parents are willing and able to foster a relationship between the other parent and      



[their daughter]."  



                      With  respect  to  the  competing  domestic  violence  allegations,  the  court  



determined only that Sarah had "committed one act of domestic violence" against John.  



                                                                                       

After weighing the best interests of the child factors, the court awarded shared physical  



custody but granted John sole legal custody, provided he continue to consult with Sarah  



                                                                                      

"on important decisions."  The court also ordered  "grandparent visitation [to] occur  



during the parental custodial time."  



                      Sarah  appeals;  we  group  her  numerous  points  on  appeal  as  follows:  



                                                                                                         

(1) whether it was error to deny her interim attorney's fees; (2) whether it was error to  



                                                                                                          

deny her a custody trial continuance; (3) whether it was error not to compel the marriage  



                                                                                                   

counselor's trial testimony; (4) whether it was error to allow JL to participate in the trial  



                                                                                         

and to award him "de facto" custody of their daughter during John's custodial time; and  



(5) whether the legal and physical custody rulings were erroneous because (a) the court  



                                        

clearly erred in finding John as willing to foster a relationship between Sarah and their  



daughter and (b) the court did not account for John's domestic violence.  John has not  



participated in this appeal.  



                                                                     -6-                                                              7015
  


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

III.	       DISCUSSION  



                                                                                                                                  

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

                                                                                               3  

                       Award Sarah Interim Attorney's Fees.  



                                                                                                     

                       Under AS 25.24.140(a)(1) the superior court may award "attorney fees and  



costs that reasonably approximate the actual fees and costs required to prosecute or  



                                                                                                                                             

defend  the  [divorce]  action"  so  long  as  such  an  award  "does  not  contribute  to  an  



                                          

unnecessary escalation in the litigation."  "The purpose of this statute is to 'assure that  



                                                                                                                               

both  spouses  have  the  proper  means  to  litigate  the  divorce  action  on  a  fairly  equal  



               4 

                                                                                                                                

plane.' "   Whether to award interim attorney's fees to a divorcing spouse "is committed  



                                                                      5  

                                                                                                            

to the sound discretion of the trial court"                              and primarily takes into account "the relative  



                                                                                                6  

economic situations and earning powers of the parties."   "A party's economic situation  



includes the divorce property division, and a party who receives a property settlement  



            3          We review the denial of interim attorney's fees in a divorce proceeding for                 



abuse of discretion.  Limeres v. Limeres , 320 P.3d 291, 296 (Alaska 2014);                                                           id. at 302  

(stating  superior  court  did  not  abuse  its  discretion  in  declining  to  award  additional  

interim attorney's fees). A superior court has "broad discretion" over interim fee awards,  

                                                                                                                                     

and  its  decision  "will  not  be  disturbed  on  appeal  unless  it  is  'arbitrary,  capricious,  

manifestly unreasonable, or stems from an improper motive.' "  Lone Wolf v. Lone Wolf ,  

                                                                                                                        

741 P.2d 1187, 1192 (Alaska 1987) (quoting Brooks v. Brooks , 733 P.2d 1044, 1058  

(Alaska 1987)).  



            4  

                                                             

                       Limeres , 320 P.3d at 302 (quoting Heustess v. Kelley-Heustess , 259 P.3d  

462, 479 (Alaska 2011)); accord Lone Wolf, 741 P.2d at 1192.  



            5          Burrell v. Burrell , 537 P.2d 1, 7 (Alaska 1975).  



            6          Lone Wolf , 741 P.2d at 1192.  A superior court may also consider "whether  



                                

the property was divided equally and whether an equal amount in attorney's fees was  

                                                                                                             

expended by the parties."  Siggelkow v. Siggelkow, 643 P.2d 985, 989 (Alaska 1982)  

(citing Johnson v. Johnson , 564 P.2d 71, 77 (Alaska 1977)).  



                                                                         -7-	                                                                 7015
  


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

sufficient to cover incurred attorney's fees should expect to pay his or her own fees."                                        7  



"When the parties' economic situations and earning capacities are comparable, each  

party should bear his or her own costs."8  



                    During the December 2012 interim hearings the superior court recognized  



        

that there was not a "pot of money" from which to award interim fees.  During the  



January 2013 interim hearings the court explained to Sarah's lawyer:  



                                                                                        

                    I can't order [John] to borrow  money from his parents.  I  

                                                                      

                    mean, I can't do that. . . .  I'm not going to say, [John] you're  

                                         

                    going to pay $10,000.  That immediately puts [John] in the  

                                                              

                    red.  I mean, I have to look at what's available before I can  

                                                                                 

                    start making sure that the attorneys are paid, and things to  

                    that nature.  



                              . . . .  



                                                                                 

                              I would, if you want to try to get a QDRO, I'm willing  

                                                                                    

                    to cooperate in that . . . in order to pay you.  But what I'm not  

                                                

                    going to do is say, you get $10,000, and then you [counsel for  

                    Sarah] go ahead and start executing on [John's] paycheck,
  

                    because that doesn't help . . . . 
 



                                                          

                    In mid-February Sarah's attorney indicated he would accept compensation
  



                                                                                       

from "an early QDRO order" but noted that he did not yet have Sarah's consent to such  



an arrangement.  Sarah consented to her attorney's withdrawal in mid-March and the  



superior  court approved the withdrawal in late April, about the same time the court  



                                                               

issued a QDRO giving Sarah a portion of John's retirement plan worth about $16,000.  



The  court  confirmed  the  property  agreement,  awarding  John  the  marital  home  but  



                                                                    

allowing Sarah to reside there until May 31.  John contended at this time that although  



his parents had given him money "to assist with attorney's fees," making the court- 



          7         Stevens v. Stevens, 265 P.3d 279, 290 (Alaska 2011) (per curiam).  



          8         Schmitz v. Schmitz, 88 P.3d 1116, 1130 (Alaska 2004).  



                                                              -8-                                                           7015  


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

ordered mortgage payments on the marital home forced him to live with his parents and                             



that he was "for all practical purposes, penniless."  



                    On appeal Sarah argues that because John had a higher earning potential  



                                                                                                           

than she, the superior court abused its discretion by declining to award her interim fees.  



                               

We have explained that "[t]he primary factors to be considered when awarding interim  



spousal support and attorney's fees are the parties' relative economic circumstances,  



                                                                                               

earning capacities, and ability to pay. . . .  [W]here the parties' economic situations and  

earning capacities are comparable, each party should bear his or her own costs."9                                            We  



                                                             

have previously concluded that it is not an abuse of discretion to withhold interim fees  



when the party being asked to pay them has "no obvious source of funds" from which  

to do so.10  



                                     

                    Here there is no evidence suggesting John had the ability to pay for Sarah's  



                 

attorney's fees.  Throughout the proceedings the court was fully aware of the parties'  



relative economic positions.  In December 2012 the court was aware that Sarah was  



                                                                                                  

working part-time and that John was temporarily between jobs.  In January 2013 John  



                                           

testified that he had "been losing money for a long time," that he was behind on the  



                                                               

marital home's mortgage, that he had not been steadily employed since separating from  



                                                                          

Sarah,  and  that  he  and  Sarah  "constantly  had  problems  making  bills"  before  they  



                                                                                              

separated.  At a February trial scheduling conference the court ascertained that a QDRO  



from John's retirement plan was "the only money" available for possible interim fees.  



                                                                                       

                    Sarah argues that the superior court should have considered the fact that  



                                             

John's parents were  paying  for his attorney before declining to award her any fees.  



          9         Hanson v. Hanson , 125 P.3d 299, 309 (Alaska 2005) (emphasis added).  



          10        See, e.g., Arrasmith v. Arrasmith , Mem. Op. & J. No. 1092, 2002 WL  



1773383, at *3 (Alaska July 31, 2002).  



                                                               -9-                                                         7015
  


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

                                                                            

Although outside financial support for litigation expenses may in some cases alter a  



                                                                                                                       11 

                                                                                                                          this is  

party's economic condition under the divorce exception's fee-shifting inquiry, 



                                                                                                          

not such a case.  Even with his parents' financial assistance, John was forced to move in  



                                              

with them to comply with the court-ordered mortgage payments he had been making on  



                                                                                

the marital home.  John's parents' financial support did not change his inability to pay  



Sarah interim attorney's fees.  



                    We  also  note  that  "[a]  party's  economic  situation  includes  the  divorce  



property division, and a party who receives a property settlement sufficient to cover  



                                                                                                      12  

                                                                                                           Sarah received a  

incurred attorney's fees should expect to pay his or her own fees."  



                                                                                                                 

QDRO  in  late  April  giving  her  a  portion  of  John's  retirement  benefit  worth  about  



                                                                                                          

$16,000.  Shortly after receiving the QDRO, Sarah related to the court that she owed her  



                                

attorney $7,000 and needed "time to retain funds to retain counsel."  Sarah's attorney had  



                  

previously  indicated  he  was  amenable  to  an  assignment  of  Sarah's  QDRO  but  was  



uncertain whether Sarah would agree to one.  



                                                                           

                    The superior court was aware of the QDRO and its order that Sarah remain  



                                                                                                               

in the marital home and John pay the mortgage throughout the litigation, both of which  

                                                                                                      13   Accordingly, we  

                                                                                                           

properly could have influenced the court's attorney's fees decision.  



          11        See, e.g., Dennis   Q. v. Monika M., Mem. Op. & J. No. 1499, 2014 WL                   



1888270, at *8 (Alaska May 7, 2014).  



          12        Stevens, 265 P.3d at 290.  



          13  

                                                                                

                    Cf. Osterkamp v. Stiles, 235 P.3d 178, 192 (Alaska 2010) (accounting for  

the  father's  occupation  of  the  home  -  the  parties'  "largest  and  only  significant  

equity" - during the divorce-like proceedings when affirming an award of interim fees  

                                                                                                

against him); Arrasmith , 2002 WL 1773383, at *3 (affirming denial of wife's request for  

                                                                                                          

attorney's fees in part because superior court properly considered husband's obligation  

                                                                     

"to make substantial additional payments" to wife to effectuate the marital property  

                                                                                                               (continued...)  



                                                              -10-                                                         7015
  


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

                                                 

cannot  say  that  the  denial  of  interim  fees  was  arbitrary,  capricious,  manifestly  



unreasonable, or stemmed from an improper motive.  



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

                    Sarah's Continuance Motions.14  



                                 

                    We will find an abuse of discretion in denying a continuance " 'when a  



                                                                                                          15  

                                                                                                              A parent's  

party has been deprived of a substantial right or seriously prejudiced.' " 



                                                                                                                  16 

                                                                                                                      When  

"right to seek custody . . . is a substantial one which the courts strive to protect." 



                          

a party's request for a continuance stems from the withdrawal of counsel, the party's lack  

of  diligence  in  retaining  new  counsel  weighs  against  granting  the  continuance.17  



                                                                             

Whether a continuance was properly denied turns on the particular circumstances of each  



                                                       

case, but courts should "balance the need[] for . . . promptness with the right[] to fair  



          13        (...continued)  



distribution).  



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



abuse of discretion is demonstrated.' "  Sagers v. Sackinger, 318 P.3d 860, 863 (Alaska  

                                                           

2014) (quoting  Greenway v. Heathcott, 294 P.3d 1056, 1062 (Alaska 2013)); accord  

                                                                           

Gregoire v. Nat'l Bank of Alaska, 413 P.2d 27, 33 (Alaska 1966) ("[A] trial court's  

                   

refusal  to  grant  a  continuance  will  not  be  disturbed  on  appeal  unless  an  abuse  of  

discretion is demonstrated."), cert. denied, 385 U.S. 923 (1966).  When reviewing the  

                                                                                                           

denial of a continuance motion we "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 abuse of discretion.' "  Sagers, 318 P.3d at 863 (quoting  

                                                                               

Greenway, 294 P.3d at 1062).  



          15       Siggelkow v. Siggelkow, 643 P.2d 985, 986-87 (Alaska 1982) (quoting  



                                                                                                               

Barrett v. Gagnon , 516 P.2d 1202, 1203 (Alaska 1973)); see also Gregoire, 413 P.2d at  

33.  



          16       House v. House , 779 P.2d 1204, 1207 (Alaska 1989).  



          17       See Barrett, 516 P.2d at 1203.  



                                                            -11-	                                                      7015
  


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

presentation  of  the  case."18            "  'Because  of  the  necessity  for  orderly,  prompt[,]  and  



effective disposition of litigation and the loss and hardship to the parties and witnesses,'  



                                                                                                                          19  

                                                                                                  

a motion for continuance should be denied absent a 'weighty reason to the contrary.' " 



                   In mid-February 2013 Sarah learned that the custody trial was scheduled  



for mid-May.  A month later Sarah consented to her attorney's withdrawal, and the court  



                                                                                 

approved the withdrawal in late April.  Sarah then twice requested continuances, asking  



                                                                                                        

the court in early April to postpone the trial until September and asking the court again  



20 days before trial for a three-week continuance.  Both motions were denied.  



                   Sarah argues that her interest in the "care, custody and control" of her  



                                                                                                                

daughter is a substantial right that was seriously prejudiced when she was forced to  



                                                                                                                       20 

                                    

litigate custody pro se.  But the case she offers to show prejudice, Fidler v. Fidler ,                                   is 



                                                                                                          

distinguishable.  In that case the superior court attempted to notify a father of his custody  



        

trial date the day before trial, but the father appeared the next day expecting a status  



                                                                                           21  

hearing,  unrepresented  and  unprepared  to  litigate  custody.                                 He  was  denied  a  



                                                                       

continuance and trial proceeded, and his inability to effectively present exhibits or cross- 

examine the mother resulted in a temporary custody award to the mother.22  



          18       Sylvester  v.  Sylvester,  723  P.2d  1253,  1256  (Alaska  1986)  (citing  



Siggelkow, 643 P.2d at 987).  



          19        Wagner v. Wagner, 299 P.3d 170, 175 (Alaska 2013) (quoting Shooshanian  



v. Dire, 237 P.3d 618, 623 (Alaska 2010)).  



          20       296 P.3d 11 (Alaska 2013).  



          21       Id. at 12-13.  



          22       Id .  at   13.    We  reversed  the  denial  of  the  father's  continuance  motion  



because he was forced "to go to trial  without being able to fairly present [his] case."  Id .  

(quoting Shooshanian,  237 P.3d at                623) (internal quotation marks omitted).  Before trial  

                                                                                                         (continued...)  



                                                           -12-                                                      7015
  


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

                    Sarah, in contrast, knew of the custody trial three-and-a-half months in  



                                            

advance and consented to her attorney's withdrawal two-and-a-half months before trial.  



         

And, unlike Mr. Fidler, Sarah was able to impeach John during trial, successfully object  



                                                                

to testimony, and admit numerous exhibits into evidence.  The superior court also took  



pains to ensure that Sarah did not prejudice herself during the course of the proceedings  



                                            

by allowing her considerable latitude in her lines of questioning and by fully explaining  



trial processes and procedures to her.  Finally, Sarah had two-and-a-half months in which  



to secure counsel before trial.  "Prejudice resulting from a party's lack of diligence in  

securing an attorney does not afford a basis to obtain a continuance."23  



                                                                                      

                   For these reasons the superior court did not abuse its discretion when it  



declined to grant Sarah's continuance motions.  



          C.	      The Superior Court Did Not Abuse Its Discretion With Respect To  

                   Witness Attendance.24  



                    Sarah filed a motion to compel the parties' marriage counselor to testify at  



the custody trial, but the superior court denied her motion a week before trial, noting that  



                                                                                                            

she could "subpoena [the counselor] and then move to enforce or compel." Sarah did not  



          22       (...continued)  



the court had unsuccessfully attempted to contact the father's lawyer, who was away on  

               

vacation.  Id .  



          23       Siggelkow, 643 P.2d at 988; see also Barrett, 516 P.2d at 1203 (noting that  

                                                                                                  

when  "  'no  diligence  in  inducing  counsel  to  remain  in  the  case  or  in  securing  new  

counsel is disclosed,' " a continuance is generally not warranted (quoting Benson v.  

Benson , 204 P.2d 316, 318 (Nev. 1949))).  



          24       We  review  the  adequacy  of  the  superior  court's  assistance  to  a  pro  se  

                                            

litigant for abuse of discretion.  See Tracy v. State, Dep't of Health & Soc. Servs., Office  

                                                                                   

of Children Servs., 279 P.3d 613, 617 (Alaska 2012); Azimi v. Johns , 254 P.3d 1054,  

                                                                                                        

1059 (Alaska 2011).  



                                                            -13-	                                                     7015
  


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

                                                                   

do so but now argues on appeal that the court abused its discretion by failing to compel  



the counselor's testimony.  



                   We  believe  the  superior  court  discharged  its  duty  to  Sarah  as  a  pro  se  



                                                                                                            25  

                                                                                                                 Because  

litigant when it apprised her of the proper procedure to accomplish her goal. 



                                                                             

Sarah did not subpoena the marriage counselor as she had been advised to do, she cannot  



now claim error by the superior court.  

          D.       We Vacate The Grandparent Visitation Order.26  



                   1.        There was no reason to award JL visitation.  



                                                                   

                   Sarah argues that the visitation  award to JL - allowing him visitation  



                                                                                                   27  

                                                                                                       We agree with  

"during the parental custodial time" - required McTaggart findings. 



Sarah that the visitation award is infirm, but for a different reason.  When the court asked  

                                                          



JL during closing arguments whether he "would want some special time for visitation  



only if your son [John] didn't get a substantial amount of visitation time," JL responded  



                                           

in the affirmative. At the end of closing arguments, the court indicated that it would only  



                                                                                                             

grant  separate  grandparent  visitation  if  John  did  not  "get  a  substantial  amount  of  



                          

visitation  time,"  and  JL  agreed  to  this  arrangement.    The  final  custody  decree  split  



physical custody equally between Sarah and John.  



          25       See Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987) ("[T]he trial judge  



should  inform  a pro  se  litigant  of  the  proper  procedure  for  the  action  he  or  she  is  

                                     

obviously attempting to accomplish.").  



          26       " 'Whether the court applied the correct standard in a custody determination  



is a question of law we review de novo, determining the rule of law in light of precedent,  

reason, and policy.' " Elton H. v. Naomi R., 119 P.3d 969, 973 (Alaska 2005) (quoting  

                                                 

Moeller-Prokosch v. Prokosch , 27 P.3d 314, 316 (Alaska 2001)).  



          27       See Evans v. McTaggart, 88 P.3d 1078, 1089 (Alaska 2004) (requiring clear  

                                   

and convincing evidence that third party visitation is in child's best interests to protect  

parents' constitutional rights in their child's upbringing).  



                                                           -14-                                                      7015
  


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

                    The court's visitation order does not provide concrete guidance for when  



                                                                          

grandparent visitation shall occur, stating only:  "Given the physical custody schedule,  



                                                                                                                       

the grandparent visitation shall take place during the . . . parental visitation, and they will  



                        

not be given a special time for grandparent visitation."  We do not construe the order to  



                                 

carve out dates from Sarah's custodial time and allocate the dates, against her wishes, to  



the grandparents.  Instead it appears to merely, and unnecessarily, allow grandparent  



visitation during John's custodial time.  



                    Because  the  record  does  not  show  that  JL  had  ever  truly  been  denied  



                                                                                  

visitation with his granddaughter, and certainly  not by John, there was no reason to  

formally award him visitation; we therefore vacate that order.28  



                    2.        There was no de facto custody award to the grandparents.  



                                                                                 

                    Sarah  argues  that  because  John  lived  with  his  mother  and  stepfather,  



                                                                 

worked frequently outside of Anchorage, and perhaps intended to seek more work out  



                                                       

of town in the future, the award of physical custody to John was a de facto award of  



                                                          29  

                                                              Sarah asserts that this type of custody award  

physical custody to the grandparents. 



          28        Accordingly, we do not need to decide whether the superior court abused   



its discretion by allowing JL to intervene in the custody proceedings.  



          29        We infrequently have dealt with de facto custody arguments.  In Elton H.  

                                                               

v. Naomi R. we decided whether a temporary award of shared physical custody to the  

children's grandmother in Anchorage and an award of legal custody to the children's  

mother in Florida was in fact an award of legal custody to the grandmother given the  

mother's great geographical distance from her children. 119 P.3d at 974-75.  We found  

                                                                                                                     

no grant of de facto legal custody, reasoning that, "[l]ike a parent who has placed her  

child in boarding school, it becomes more difficult for [the mother] to ensure that her  

                                            

preferences  regarding  her  children's  education,  discipline,  morality,  and  religious  

instruction are carried out.  This difficulty, however, does not deprive her of the right to  

                                                                                                                         

make such decisions." Id . at 975.  And in Harvey v. Cook the issue squarely before us  

                                                     

was whether granting sole legal and physical custody to the father, who was stationed  

                      

                                                                                                               (continued...)  



                                                              -15-                                                         7015
  


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

                                                                                                      30 

                                                                                      

requires clear and convincing evidentiary findings under McTaggart .    Speculating that  



                                                                                   

John was working out of town during the custody trial and that he plans to do so again,  



                                                                                              

Sarah argues that John "was positioning his parents to exercise de facto physical custody  



     

of [John and Sarah's daughter] for him if he chose to work out of town."  (Emphasis  



added.)    But,  as  the  hypothetical  connotation  of  Sarah's  language  suggests,  John's  



                                                              

absence, and therefore  de facto physical custody, is only a possibility, and John's living  



                                                                                                              31  

situation  did  not  transform  the  grandparents  into  de  facto  custodians.                                     We  note,  



                                                                                                          

however, that if John does begin full-time work outside of Anchorage while leaving his  



daughter in her grandparents' physical custody, Sarah remains free to test her de facto  



custody arguments through a custody modification motion under AS 25.20.110.  



          E.        We Remand The Custody Decision For More Detailed Findings.  



                                                     

                    1.	       The superior court's domestic violence findings are insufficient  

                              for appellate review.  



                    The superior court must make detailed findings on alleged incidents of  



                             32  

domestic violence.               "[T]he requirement that . . . trial judge[s] file findings of fact"  



                                                                                     

assures us that they have "exercised care in ascertaining the facts, and ha[ve] employed  



          29        (...continued)  



overseas, was in fact a grant of physical custody to the father's new wife requiring  

                

McTaggart findings, but the father returned home before we decided the case, mooting  

                                                                                                              

the issue. 172 P.3d 794, 796-98 (Alaska 2007).  



          30	       See supra note 27.  



          31  

                                                                                                       

                    In fact, such living arrangements sometimes support a parent's custody  

argument.  Cf. Green v. Parks, 338 P.3d 312, 314 (Alaska 2014) (holding superior court  

did  not  clearly  err  in  finding  mother  provided  a  stable  living  environment  under  

                                                 

AS 25.24.150(c)(5) in part because mother testified she and her child were living with  

                                    

mother's parents "who assisted with childcare when [mother] was at work or in class").  



          32  

                                                                                            

                    See Faye H. v. James B., ___ P.3d ___, Op. No. 6997 at 9, 2015 WL  

 1743199, at *4 (Alaska April 17, 2015).  



                                                              -16-	                                                        7015
  


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

both skill and judgment in reducing [their] thoughts on contested matters to precise and  



                                                                                                         33  

                                                                                                              "[D]etailed and  

pertinent findings while the evidence is still fresh in [their] mind[s]." 



                                                                                                                     

explicit findings" are necessary on appeal to give us " 'a clear understanding of the basis  



     

of the trial court's decision, and to enable [us] to determine the ground on which the trial  



                                            34  

                                                                                               

court reached its decision.' "                   Because the findings here do not achieve this purpose,  



                                                            

we remand to allow the superior court to make more specific findings of fact regarding  

all of the domestic violence allegations.35  



                    Alaska  Statute  25.24.150(g)  creates  the  "rebuttable  presumption  that  a  



                                                              

parent who has a history of perpetrating domestic violence against the other parent" may  



            

not be awarded legal or physical custody of the child.  A history of domestic violence  



                                                                                                            

exists if "the court finds that, during one incident of domestic violence, the parent caused  



                                     

serious physical injury or the court finds that the parent has engaged in more than one  



                                               36  

                                                                                           

incident of domestic violence."                    The presumption against awarding custody to a parent  



with  a  history  of  domestic  violence  "may  be  overcome  by  a  preponderance  of  the  



evidence" if "the perpetrating parent has successfully completed an intervention program  



          33        Merrill v. Merrill , 368 P.2d 546, 548 (Alaska 1962); see also Alaska R.  



Civ. P. 52(a); John N. v. Desiree N. , Mem. Op. & J. No. 1460, 2013 WL 1933133, at *5  

                                                                                      

(Alaska May 8, 2013) (stating that when a trial court changes its mind regarding whether  

                         

an incident rose to the level of domestic violence, there should be "findings sufficient to  

                                                                                                

explain any significant change in the . . . perspective between one hearing and the next").  

                                                              



          34  

                                                                                                                         

                    Merrill , 368 P.2d at 548 (quoting Irish v. United States , 225 F.2d 3, 8 (9th  

Cir. 1955)).  



          35  

                                                                              

                    See,  e.g.,  Williams  v.  Barbee,  243  P.3d  995,  1003-04  (Alaska  2010)  

                                                                                                       

(summarizing our domestic violence custody cases and remanding for superior court to  

consider  whether  single  severe  choking  incident  amounted  to  a  history  of  domestic  

violence under AS 25.24.150(h), which provides that one domestic violence incident  

causing "serious physical injury" establishes a history of domestic violence).  



          36        AS 25.24.150(h).  



                                                               -17-                                                          7015
  


----------------------- Page 18-----------------------

for  batterers"37        -  or  completes  similar  counseling  to  satisfy  the  court  that  the  



                                                 38                                                               39 

                                                                   

                                                                         

presumption has been overcome                       - "does not engage in substance abuse,"                          and "the  



                                                                                                                 

best interests of the child require" the parent with a history of domestic  violence to  

participate "as a custodial parent" in the child's life.40  



                    When both parents have a history of perpetrating domestic violence the  



                                                                                                          

superior  court  must  either:    (1)  award  custody  "to  the  parent  who  is  less  likely  to  



continue  to  perpetrate  the  violence  and  require  that  the  custodial  parent  complete  a  



                                                                                           

treatment program"; or (2) if necessary to protect the child's welfare, award custody "to  



                                                                      

a suitable third person if the person would not allow access to a violent parent except as  



                                41 

                                                                                    

ordered by the court."               If both parents have a history of domestic violence, but the court  



                                                                

"finds that neither parent is more  likely  than the other to continue to perpetrate the  



                       

violence," the court may in its discretion determine that AS 25.24.150(g)'s presumption  



                                                                              

against custody applies to neither parent, in which case the court "should consider the  



                                                                                                 42  

remaining best-interests factors in making its custody decision."                                     When determining  



whether the presumption against custody applies because neither parent is more likely  



                                                                                       

than the other to continue perpetrating domestic violence, courts must "take a holistic or  



          37        Id .  



          38        Id .  See  also Stephanie  F.  v. George C., 270 P.3d 737, 753 (Alaska 2012)  



(holding "that  the r  ebuttable pr           esumption .  .  .  may be ove          rcome by      means other than the  

completion of an intervention program for batterers").  



          39        AS 25.24.150(h).  



          40        Id .  



          41        AS 25.24.150(i); see also AS 25.24.150(j) (requiring parent with history  



of domestic violence  to take certain affirmative steps before supervised or unsupervised  

visitation can be awarded).  



          42        Mallory D. v. Malcolm D. , 290 P.3d 1194, 1207 (Alaska 2012).  



                                                              -18-                                                         7015
  


----------------------- Page 19-----------------------

qualitative  approach"  and  not  "merely  count[]"  each  parent's  domestic  violence  

                                                                                                     



               43  

incidents.           Particularly  "heinous"  or  "egregious  [acts  of]  domestic  violence"  may  



suggest that one parent is more likely than the other to continue perpetrating violence,  

especially when the other parent's domestic violence is "comparatively minor."44  



                    Under AS 25.24.150(g) superior courts must "consider alleged incidents of  

                                                                                                       



domestic violence," and when dealing with pro se litigants, "the trial court should solicit  

                                      

                                               



from the parties the information it needs to determine whether [certain incidents are]  

act[s] of domestic violence."45  



                              a.	       The parties' testimony and evidence indicate there were  

                                                                                                                  

                                        allegations of serious incidents of domestic violence that  

                                        were not addressed by the superior court.  



                                        i.	       The separation incident involving a car seat  



                    In  November  2012  John  and  Sarah  argued  over  who  could  use  their  

                                                                                          



daughter's only car seat, and this "emotionally ugly" incident resulted in their separation.  

                                                                                            



Sarah asked John if she could use the car seat, and he responded by locking the vehicle  

                                                                                                  



containing the car seat.  John testified that Sarah then became "very irate and hostile  

                                                                                                                  



towards" him.  



                    When Sarah threatened to call the police, John called JL and asked him to  

                                                                                                     



come over.  When JL arrived, Sarah locked the front door, and John  told JL to run  

                                                                                                             



around to the back door.  Sarah claims John restrained her to allow JL to get inside, but  

                                                                                         



John testified that as he was opening the back door for JL, Sarah slammed into it and  

                                                                                                     



scared him. Sarah did not contradict John's testimony that their daughter stood between  

                    



          43        Id.  



          44        Id.  



          45        Parks v. Parks , 214   P.3d 295, 302 (Alaska 2009) (per curiam);  accord  



Williams v. Barbee, 243 P.3d 995, 1004-05 (Alaska 2010) (per curiam).  



                                                              -19-	                                                       7015
  


----------------------- Page 20-----------------------

them crying during this incident.  JL then came inside, picked up John and Sarah's  



                                                                                               

daughter, and sat on the sofa, but Sarah took her daughter from him and went upstairs.  



                                       ii.       Protective order violations  



                    In November 2012 John and Sarah each obtained 20-day ex parte domestic  



violence protective orders as a result of their car seat argument.  Sarah's order against  



                                                           

John was extended until December 31, 2012.  Before the order expired, John and Sarah  



                                                

agreed to dismiss their petitions for long-term protective orders on the condition that the  



superior court issue a no-contact order instead.  



                                                                          

                    The magistrate who issued Sarah's protective order against John wrote:  



                                       

"John admits that during the first part of their relationship he was a user of drugs and  



                                                                                                        

alcohol  which  negative[ly]  affected  his  behavior.    [H]e  engaged  in  multiple  acts  of  



                                                       

domestic violence during that time."  The order forbade John from telephoning Sarah or  



                                                          

"communicat[ing] in any way," except that he could call Sarah twice a day between noon  



and 8 p.m., subject to certain restrictions, and could also call to say goodnight to their  



                                                                                     

daughter.  The order forbade John from coming within 500 feet of the marital home  



where Sarah then resided.  



                                                                              

                    Sarah admitted in December 2012 that she had violated John's protective  



order by calling him twice to discuss sex.  Sarah also recalled "having [a] telephone  



                                                                                                              

conversation[] with John about what to do regarding the domestic violence cases" while  



the protective orders were in effect.  John admitted during trial that he and Sarah "had  



sex many times since we split up."  



                    On December 31, 2012, as the parties were contesting domestic violence  



                                                                                        

allegations,  the  court  cut  them  off  and  stated:    "Let  me  tell  you  right  now,  unless  



                                                                                                                  

something really shows up here, you both have a history of domestic violence.  Violating  



                                                             -20-                                                       7015
  


----------------------- Page 21-----------------------

                                                                                         46  

        

DV orders, that's domestic violence in and of itself."                                       And the final custody decree  



states that both parties "disregard[ed]" their mutual protective orders.  



                                            iii.       The Mother's Day incident  



                                                                                                                  

                      Through an affidavit Sarah contended that on Mother's Day in 2010 John  



came home drunk and began arguing with her.  She alleged that as the fight escalated  



                                       

John tried to see their daughter as she slept in her crib, but that Sarah placed herself  



                                                                                

between John and the crib.  According to Sarah, John then began strangling Sarah, and  



                                                                                                                           

she scratched his face and pried his fingers from her neck.  By contrast John testified that  



                                                                  

he went to bed after coming home and awoke to Sarah pouring ice water on his head,  



                                                                               

angering and leading him to punch holes in the wall.  John testified Sarah punched him  



                                                                                                             

in the head repeatedly while accusing him of cheating on her. As a result of this incident,  



John and Sarah's daughter woke up and began to cry.  



                      John called the police, and Sarah was arrested because of the scratches on  



                                               

John's face, but Sarah also testified that she had told the officers not to arrest John.  



Sarah testified that she was acting in self-defense and that after the incident John's face  



           46         AS 18.66.990(3)(G) defines domestic violence as "violating [or attempting           



to violate] a protective order under AS 11.56.740(a)(1)."  AS 11.56.740(a)(1) makes it       

unlawful to "knowingly commit[] or attempt[] to commit an act with reckless disregard          

that  the  act  violates  or  would  violate  a  provision  of  the  protective   order"  "listed  in  

AS 18.66.100(c)(1)-(7)."  Under AS 18.66.100(c)(2) Sarah's protective order against  

John  prohibited  "communicat[ing]  in  any  way"  with  certain  exceptions.    John's  

protective order against Sarah does not appear in the record, although his request to  

                             

dissolve it because he no longer feared her does.  In short, if the parties met to have sex  

                                                                                                    

or otherwise communicated while their mutual protective orders were in place, and if  

                       

John's order was similar to Sarah's, then they both were committing domestic violence,  

                                                                                                                

and the court should have accounted for each party's protective order violations in its  

custody analysis, especially after having found that both John and Sarah "disregard[ed]"  

                                                                                            

the protective orders.  See AS 25.24.150(c)(7), (g)-(k).  



                                                                    -21-                                                              7015
  


----------------------- Page 22-----------------------

                                                                                       47  

                                                                                                                     

was scratched, his nose bloodied, and his eye swollen shut.                                John later wrote Sarah a  



letter accepting fault for the Mother's Day incident, admitting he had choked Sarah and  



she had acted in self-defense.  In another apology letter to Sarah, John wrote that he was  



                           

"sorry for putting [his] hands on [Sarah] in anger."  But John later testified he had never  



assaulted Sarah, and that Sarah blackmailed him into writing these letters by threatening  



to take their daughter from him.  



                                    

                    Although  John  and  Sarah  disputed  who  instigated  the  Mother's  Day  



                                                                                                     

incident and the fight's precise contours, they agreed it occurred.   Upon hearing the  



                                                                                                                            

parties' testimony for the first time, the court remarked that "clearly . . . some injury . . .  



                                                                                                                48  

happened. . . . [B]oth parties probably have engaged in domestic violence."                                         But the  



court later found in its final custody decree that "neither party sustained their burden of  



                                                               

proof" with respect to numerous domestic violence allegations without making specific  



findings  of  fact  as  to  each  allegation.    A  blanket  statement  that  neither  party  was  



"particularly  credible"  does  not  relieve  the  court  from  resolving  domestic  violence  



                                                                                                 

allegations in the context of child custody proceedings, nor does it relieve the court from  



explaining why its mind changed during the course of the proceedings.  The Mother's  



                                                                                                                

Day incident was perhaps the most egregious domestic violence allegation and should  



                                   49  

not have been ignored.      Based on the evidence in the record, either John strangled  



          47        Sarah  also  presented  two  affidavits  from  coworkers  attesting  to  her  



bloodied eye and bruised neck, and the court admitted exhibits into evidence showing  

John's bruised, swollen, and scratched face.  



          48        See AS 18.66.990(3)(A) (defining the crime of assault in the fourth degree     



- "recklessly caus[ing] physical injury to another person,"  AS 11.41.230(a)(1) - as  

domestic violence).  



          49  

                                              

                    Cf. Michele M. v. Richard R., 177 P.3d 830, 835-38 (Alaska 2008) (holding  

that when a court fails to consider its own domestic violence findings from an earlier  

                                                                                                           (continued...)  



                                                             -22-                                                       7015
  


----------------------- Page 23-----------------------

                                                                                        

 Sarah, Sarah punched and scratched John, or they fought each other, in which case the  



superior court should have made additional findings on whether John or Sarah acted in  

justifiable  self-defense.50  



                                         iv.       Punching holes in the wall  



                                                                                  

                     Sarah argues that "punching holes in the wall of the marital home . . . could  



                                                                                                    51  

                                                                                                                 

constitute an act of criminal mischief under AS 11.46.484(a)(1)."                                       John testified that  



                                                             

after Sarah poured water on him during the Mother's Day incident, "I got up, and I was  



noticeably disoriented and angry.  [Sarah] walked away, and I walked over and I hit the  



          49         (...continued)  



proceeding, as well as "unrebutted testimony by a witness as to the existence of domestic  

                                                                                                                   

abuse," it is "plain error for the court not to further determine whether [the] previous acts  

                                                                                                         

of  domestic  violence  constituted  a  history  of  perpetrating  domestic  violence  under  

AS 25.24.150(h)" (internal quotation marks omitted)); Thomas v. Thomas, 171 P.3d 98,  

                                                          

 106 (Alaska 2007) (holding, in custody case where father pled no contest to assault, that  

                                                                                                               

"[t]he evidence of domestic violence in this case cannot accurately be characterized as  

                              

 'insignificant'  or  'muddy.'    The  superior  court  was  presented  with  uncontroverted  

evidence of a serious episode of domestic violence, and its failure to thoroughly consider  

                                                                              

that issue and address it in its findings was clearly erroneous."); Puddicombe v. Dreka ,  

                

 167 P.3d 73, 77 (Alaska 2007) ("[W]hen the record shows that domestic violence has  

occurred and the court so finds, it is plain error for the court not to make findings as to  

                                                                                    

whether the domestic violence amounted to a history of perpetrating domestic violence.  

                                                

If  such  a  history  is  found  then  the  path  charted  in  subsection  .150(g)-(i)  must  be  

                                            

followed.").  



          50  

                                           

                    See Dennis Q. v. Monika M., Mem. Op. & J. No. 1499, 2014 WL 1888270,  

          

at *6 (Alaska May 7, 2014) (explaining that domestic violence self-defense claims are  

                                              

"subject to the necessity and proportionality requirements that apply to all other self- 

defense claims involving non-deadly force" (citing AS 11.81.330(a))).  



          51        AS 11.46.484(a)(1) makes it a crime to intentionally "damage[] property  



of another" without the "right to do so or any reasonable ground to believe . . . such a  

right" exists.  (Emphasis added.)  See AS 18.66.990(3)(E) (classifying criminal mischief  

as domestic violence).  



                                                               -23-                                                        7015
  


----------------------- Page 24-----------------------

wall twice.  And I put two holes in the wall, right next to the doorway.  At that point she  

                                                                                    



was standing . . . in the hallway . . . ."  John also testified that he owned the house, and  

                                                       



Sarah agreed.  



                   In Stephanie F. v. George C. we affirmed the superior court's finding that  



                                                   

punching  a  bathroom  door  during  an  argument  was  domestic  violence  because  the  

                                                       52  But we also stated:  "At the outset, we reject  

mother in that case co-owned the home.     



the suggestion that ownership of a door determines whether punching a hole in it during  

                                                                                                          



an argument, in the presence of one's spouse, can constitute domestic violence.  Placing  



                                                                                                         

another  person  in  fear  of  imminent  physical  injury  'by  words  or  other  conduct'  is  



            53  

assault."       Therefore even if John owned the marital home outright, he still may have  



                                                                                                           

assaulted or attempted to assault Sarah by punching holes in their bedroom wall while  



she stood in the nearby hallway.  



                                     v.       The knife-brandishing incident  



                                                                           

                   John admitted during an interim hearing - and again at trial - that he had  



brandished a knife and threatened to kill Sarah's dog and slash her tires as she was  



walking away from him.  If John "recklessly place[d] . . . [Sarah] in fear of imminent  

                                                      54 then this was an act of domestic violence that  

physical injury" or attempted to do so,                          

should have been factored into the custody analysis under AS 25.24.150(g)-(i).55  



         52        270 P.3d 737, 740, 750-51 (Alaska 2012).  



         53       Id . at 750 n.35 (quoting AS   11.41.230).  See also  AS 18.66.990(3)(A)  



(classifying assault as domestic violence).  



         54        AS 11.41.230(a)(3).  



         55        See AS 18.66.990(3)(A).  



                                                         -24-                                                    7015
  


----------------------- Page 25-----------------------

                                                                                                    

                             b.	       The superior court made inconsistent statements about  

                                       the domestic violence incidents.  



                   In December 2012 the court stated, "Violating DV orders, that's domestic  



                                                                                                         

violence  in  and  of  itself."            In  January  2013  the  court  stated  that  it  "certainly  had  



                

testimony from both parties regarding incidents of domestic violence against each other,  



including the separation [incident] and the Mother's Day incident where [Sarah] was  



                       

arrested."  The court then stated, "Clearly there is some injury that happened. . . . [B]oth  



parties probably have engaged in domestic violence."  



                                                                       

                   In August 2013 the superior court issued findings of fact and conclusions  



                                                                             

of law.  The court found that Sarah "was arrested for DV on Mother's Day 2010 and the  



                                                                                                     

charges were dropped."  The court also found that John and Sarah's "disregard for the  



Protective Orders and the no contact order heightened the litigation in this case."  The  



                                                                                              

court then contradicted statements it made during the December 2012 and January 2013  



interim  hearings  by  finding  that  although  it  had  "received  evidence  of  situational  



                                                                                                         

domestic violence, each against the other[,] . . . neither party sustained their burden of  



                                                                                                     

proof [for] a conclusion of law with the exception of one act when the parties separated."  



                                                                              

The  court  then  concluded  that  Sarah  "committed  one  act  of  domestic  violence,"  

presumably during the car seat incident that led to John and Sarah's separation.56  



                   When denying Sarah's motion for reconsideration, the superior court stated  



that it did not believe the parties:  their marriage was " 'drama' seeking," their testimony  



                                                                                          

was incredible, and there was no proof of domestic violence because neither party was  



          56        The    superior  court  apparently  concluded  that  the  car  seat  incident  



constituted domestic violence under AS 18.66.990(3)(A), which brings "a crime against   

the   person   under   AS   11.41"   within   the   ambit   of   domestic   violence.      Under  

AS 11.41.230(a)(3) "[a] person commits the crime of assault in the fourth degree if  

. . . by words or other conduct that person recklessly places another person in fear of  

imminent physical injury."  



                                                            -25-	                                                      7015
  


----------------------- Page 26-----------------------

                                                                                

"actually placed in fear of assault."  Instead, the court concluded that their "situational  



acts"  were  merely  "part  of  the  dysfunctionality  that  permeated  the  parties[']  time  



together."  



                             c.        Sarah's appeal  



                                                                                           

                    On appeal Sarah argues that the superior court erred by not considering  



                                                                                                   

three  acts  of  domestic  violence:    (1)  John  "putting  his  hands  on  [Sarah]  in  anger";  



                                                                

(2) John "punching holes in the wall of the marital home"; and (3) John "threatening to  



       

kill [Sarah's] dog and slash her tires."  Sarah further argues that under Parks v. Parks ,  



                                                                    

because she litigated custody pro se, the court should have solicited further information  



                                                                                                                    57  

                                                                                                                         We  

from her to determine which alleged incidents were acts of domestic violence. 



agree with Sarah.  



                                                                                                       

                   Under Alaska law domestic violence encompasses both certain specified  



                                                                  58  

                                                                      In the context of fourth degree assault,  

crimes and attempts to commit those crimes. 

defined as "recklessly plac[ing] another person in fear of imminent physical injury,"59  



we have held that because domestic violence encompasses an attempted assault, "[i]t is  

                                        

irrelevant whether [the alleged victim] was actually placed in fear."60   But the superior  

                                                                                                       



          57       214 P.3d 295, 302 (Alaska 2009) (per curiam).  



          58       AS 25.90.010 defines domestic violence by reference to AS 18.66.990, and  



AS 18.66.990(3) defines domestic violence as "one or more of the following offenses . . .  

                                                                

or an attempt to commit the offense."  (Emphasis added.)  



          59       AS 11.41.230(a)(3).  



          60       Parks ,  214  P.3d  at  300.    ("Throwing  water  at  [mother]  was  therefore  



'domestic violence' . . . if [father], in doing so, 'attempted' to place [mother] in fear of  

                                                                                                                  

imminent physical injury. . . .  We therefore remand for a determination whether [father]  

attempted to place [mother] in fear of imminent physical injury when he threw water at  

                                                                                    

her.    If  he  did,  the  trial  court  must  determine  whether  [father]  has  overcome  

                                                                                                           (continued...)  



                                                            -26-                                                       7015
  


----------------------- Page 27-----------------------

                                                

court found only one incident of domestic violence by reasoning that neither John nor  



                                                                  

                                                                                              

Sarah was "actually placed in fear of assault."  This was incorrect:  it was not necessary  



for Sarah or John to actually fear one another; rather, to find domestic violence, the  



                                                                                 

superior court should have determined whether Sarah or John "attempted" to place the  



                                                           61 

                                                               On remand the superior court should gauge  

other "in fear of imminent physical injury." 



                                                                                

the alleged perpetrator's intent rather than the victim's actual fear or lack thereof.  If  



Sarah  appears  pro  se,  the  court  should  solicit  from  her  the  information  it  needs  to  

determine whether certain alleged incidents are in fact domestic violence.62  



                   With respect to the numerous domestic violence allegations, the superior  



court's factual findings do not "allow us to glean from the record what considerations  



                       63  

were involved."            On remand the superior court must consider the parties' allegations  



and testimony noted above and must make detailed and specific findings on the domestic  

                                                                                         

violence allegations.64  



         60        (...continued)  



AS  25.24.150(g)'s  presumption  against  joint  legal  custody.");  accord  Harris  v.  

Governale, 311 P.3d 1052, 1058 (Alaska 2013) ("[N]o matter which person was the  

aggressor, an attempted assault occurred if the perpetrator attempted to put the victim in  

fear  of  imminent  physical  injury,  regardless  of  success,  and  attempted  assault  is  a  

domestic violence crime." (emphasis in original)).  



         61        Parks , 214 P.3d at 300; Harris , 311 P.3d at 1058.  



         62        Parks , 214 P.3d at 302.  



         63        Dragseth  v. Dragseth, 210 P.3d 1206, 1208 (Alaska 2009) (quoting Smith  



v. Weekley, 73 P.3d 1219, 1226 (Alaska 2003)).  



         64        The superior court should  consider  on  remand  the  strength  of the domestic  



violence allegations in Sarah's "Testimonial Affidavit," including but not limited to:  

(1) John broke a bathroom door to get to her - John also admitted to kicking down a  

                                        

doorframe but when no one was around; (2) John threatened in some detail to kill her;  

                                                                       

                                                                                                      (continued...)  



                                                          -27-                                                    7015
  


----------------------- Page 28-----------------------

                                                                                    

                    2.	       It was not clearly erroneous  to  find that John was willing to  

                              encourage Sarah's relationship with their daughter.65  



                    Joint  legal  custody  permits  both  parents  to  "share  responsibility  in  the  



                                                             

making of major decisions affecting the child's welfare" but is proper only if "the parents  



                                                                                           66  

can cooperate and communicate in the child's best interest."                                   Sarah attacks the award  



          64	       (...continued)  



(3) John kicked the family dog down the stairs and laughed; (4) John kicked down the  

                                                                                                   

bedroom door; and (5) John threatened to kill Sarah's friend - at trial John equated  

                                                                   

murdering Sarah's friends to love.  The court also should consider the strength of John's  

                                                     

domestic violence allegations, including but not limited to:  (a) Sarah once punched him  

                                                                                                         

in the side of the head; (b) Sarah threatened to kill him; and (c) Sarah threatened to break  

                                                                                              

his wrists if he cheated on her.  



                    In  the  event  the  superior  court  finds  that  either  parent  has  a  history  of  

domestic violence under AS 25.24.150(h), we note that two of our recent decisions -  

                                                                                                 

Kristina B. v. Edward B. , 329 P.3d 202, 207-09 (Alaska 2014) and  Stephanie F. v.  

George C., 270 P.3d 737, 750-55 (Alaska 2012) - deal in some depth with overcoming  

                                                                          

the presumption against awarding legal or physical custody of a child to a parent with  

                                                      

a history of domestic violence.  



          65  

                                                    

                    We review findings of fact in custody cases for clear error, see Red Elk v.  

                                                                    

McBride , 344 P.3d 818, 822 (Alaska 2015), and "find clear error when, after review of  

                                        

the entire record, 'we are left with a definite and firm conviction' a mistake occurred."  

 Wee v. Eggener, 225 P.3d 1120, 1124 (Alaska 2010) (quoting Dingeman v. Dingeman ,  

                                                                                  

865 P.2d 94, 96 (Alaska 1993)). "We give 'particular deference to the [superior] court's  

factual findings when they are based primarily on oral testimony, because the [superior]  

court, not this court, performs the function of judging the credibility of witnesses and  

                                                                

weighing conflicting evidence.' " Jaymot v. Skillings-Donat , 216 P.3d 534, 539 (Alaska  

2009) (quoting Millette v. Millette , 177 P.3d 258, 261 (Alaska 2008)); see also Monsma  

v.  Williams, 385 P.2d 107, 110 (Alaska 1963).  



          66  

                                                                                                       

                    Jaymot , 216 P.3d at 540 (quoting Farrell v. Farrell , 819 P.2d 896, 899  

(Alaska 1991)) (internal quotation marks omitted).  



                                                               -28-	                                                       7015
  


----------------------- Page 29-----------------------

                                  

of sole legal custody and shared physical custody to John on the ground that the court  



clearly erred by determining that John was willing to foster Sarah's relationship with  



                       67  

their daughter.            We disagree.  



                     The court's primary concern in crafting the custody award was the impact  



of  John  and  Sarah's  "chaotic"  and  "dysfunctional"  relationship  on  their  daughter's  



                  

emotional well-being.  The court found that John was "more likely to disengage and  



make healthier decisions for [their daughter]" whereas Sarah was "manipulative and less  



                   

capable   of   setting  aside  emotional  factors  when  making  decisions  about  [their  



daughter's] best interest[s]."  Therefore, even if Sarah were more willing than John to  



                                                                  

foster a relationship with the other parent in their daughter's best interests, the way she  



went about doing so could have negatively impacted their daughter.  Although it is  



                                         

important for each parent to encourage the other parent's relationship with the child, the  



importance of this factor here was properly discounted by the court's findings that the  



                                                                                                                     

parents' relationship  was dysfunctional, but that John  was better able to  control  his  

emotions.68  



          67         See AS 25.24.150(c)(6).  



          68         See Green v. Parks, 338 P.3d 312, 315 (Alaska 2014) (affirming favorable     



custody award to mother in part because superior court "found that [mother]'s reluctance   

to allow [father]'s family to spend time with their daughter was understandable to a  

certain extent, given [mother]'s difficult relationship with [father]"); Riggs v. Coonradt,  

                        

335 P.3d 1103, 1107 (Alaska 2014) ("On balance, the court viewed the likelihood that  

                                                                                

[father] would try to shut [mother] out as less harmful to the children than [mother]'s  

desire to use custody as a weapon against [father]."); Limeres v. Limeres , 320 P.3d 291,  

                                                                                                

298 (Alaska 2014) (affirming award of sole legal custody to mother in part because  

                                

father "significantly and intentionally disparaged [the mother] in the presence of and  

directly to the children on multiple occasions"); James R. v. Kylie R. , 320 P.3d 273, 278  

                                                                                                           

(Alaska 2014) (affirming award of primary physical custody to mother in large part  

because superior court reasoned that father's willingness to foster child's relationship  

                                                                        

                                                                                                                 (continued...)  



                                                                -29-                                                          7015
  


----------------------- Page 30-----------------------

                                                                                            

                    The record supports the superior court's findings.  John's testimony shows  



he  realized  that  he  and  Sarah  were  not  great  communicators  and  that  the  less  they  



interacted, the less chance there would be for emotional harm to their daughter.  Both  



                                                                                                                 

John and JL testified that Sarah often berated them, and at custody exchanges in front of  



                                                                                                                 

John and Sarah's daughter Sarah would sometimes deliver scathing comments and imply  



that John did not give her enough money to support their daughter.  And John also  



testified that:  he wanted his daughter to be a part of Sarah's life; he was willing to accept  



             

Sarah's input on an appropriate preschool for their daughter; he often invited Sarah to  



play-dates with him and their daughter; he supported Sarah's relationship with their  



                                                                                                         

daughter and did not bad mouth Sarah in their daughter's presence; he recognized and  



approved  of  the  love  between  Sarah  and  their  daughter;  and  he  often  encouraged  



                                                                    

goodnight telephone calls between Sarah and their daughter.  Although there certainly  



                                                                                                                       

is evidence to the contrary given John and Sarah's deeply troubled relationship, it was  



not clearly erroneous to find that John was willing to foster Sarah's relationship with  



their daughter.  



                                                                                                               

                   Although this factual finding was not clearly erroneous, we do not address  



                                                                                                   

whether the superior court properly balanced the best interest factors because its findings  



                                                                               

regarding  domestic  violence  were  insufficient,  and,  even  if  the  AS  25.24.150(g)-(i)  



          68        (...continued)  



with  mother  was  belied  by  father's  extremely  negative  characterizations  of  mother  

throughout the trial); Jaymot , 216 P.3d at 541 (affirming award of sole legal custody to  

                                                                                              

father in part because he was "more composed and capable of extracting himself from  

the anger of the moment").  



                                                            -30-                                                       7015
  


----------------------- Page 31-----------------------

restrictions on custody do not apply, it may have to "reevaluate on remand the relative   



weights" of the best interest factors under AS 25.24.150(c), as well as the domestic  

violence allegations.69  



IV.       CONCLUSION  



                   We VACATE the grandparent visitation order.  We otherwise AFFIRM the  



superior court's rulings except for the custody decision, and REMAND to allow the  



superior  court  to  enter  more  detailed  and  specific  findings  and  conclusions  on  the  



                                                                                               

relevant domestic violence issues and, if appropriate, enter a new custody decision.  We  



retain jurisdiction.  



          69       See Williams v. Barbee, 243 P.3d 995, 1006 (Alaska 2010).  



                                                            -31-                                                         7015  

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