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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Solomon v. Solomon (6/8/2018) sp-7249

Solomon v. Solomon (6/8/2018) sp-7249

          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  


                      THE SUPREME COURT OF THE STATE OF ALASKA                                    

TERRACE  L.  SOLOMON,                                         )  

                                                              )     Supreme  Court  No.  S-16696  

                               Appellant,                     )  


                                                              )     Superior Court No. 3AN-15-04521 CI  

          v.                                                  )  


                                                              )    O P I N I O N  


WENDY D. SOLOMON,                                             )  



n/k/a WENDY D. BARNES,                                        )    No. 7249 - June 8, 2018  


                               Appellee.                      )  




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


                     Judicial District, Anchorage, Gregory Miller, Judge.  


                     Appearances:  John C. Pharr, Law Offices of John C. Pharr,  


                     Anchorage, for Appellant.  Notice of nonparticipation filed  


                     by David S. Houston, Houston & Houston, Anchorage, for  



                     Before:  Stowers, Chief Justice, Winfree, Maassen, Bolger,  


                     and Carney, Justices.  


                     BOLGER, Justice.  




                     The superior court issued a decree divorcing Terrace L. Solomon and  


Wendy D. Barnes (formerly Solomon) and reserving custody of the parties' children to  


be decided at a later trial.  Before the custody trial could be held, Terrace was arrested  


and held in a United States Army prison outside Alaska.  The superior court repeatedly  

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

continued the custody trial to allow Terrace's counsel to get in contact with Terrace and                                                                                                                      

arrange for his telephonic appearance at trial.                                                                       But after about a year had passed, the                                                    

court refused to further continue the matter. A short custody trial was held; Terrace was                                                                                                                     

absent but represented by counsel.                                                          The court awarded sole legal custody and sole                                                                    

physical custody to Wendy. The court determined, among other things, that Terrace had                                                                                                                          

a history of perpetrating domestic violence, triggering a presumption against awarding                                                                                                           

him custody.                     1  

                                 On appeal Terrace claims the superior court abused its discretion when it  


refused to further continue the custody trial.   Terrace also claims the court erred in  


concluding he had a history of domestic violence.   He contends that the record was  


inadequate to support this conclusion and that the court did not make the requisite  


findings to support it.  We agree the superior court's domestic violence findings are  


insufficient and thus vacate the court's determination concerning the domestic violence  


presumption.  We otherwise affirm the superior court's judgment.  




                 A.              Background  

                                 Terrace and Wendy married in 1999 and had four children during the  


marriage. They separated in December 2014, and Wendy has had custody of the children  


since that time.  In January 2015 Wendy filed for divorce.  


                                 Thesuperior court bifurcated thedivorceproceeding. It heldaone-day trial  


on property and child support2  issues on October 15, 2015, and the following day it  


                 1               AS 25.24.150(g).   



                                 The superior court addressed child support at Wendy's request.  Since the  


parties' separation, Terrace had voluntarily paid child support to Wendy and had also  


voluntarily paid rent for the property where Wendy and the children resided. But Wendy  


                                                                                                        -2-                                                                                                7249

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

issued an order resolving these issues and decreeing the parties divorced.                                                                                                                                                                                                                                                                                            The court   

 scheduled a half-day trial on child custody and a related domestic violence petition for                                                                                                                                                                                                                                                                                                                  

January 14, 2016.                                                                      

                                B.                              Terrace's Arrest And The Continuance Of The Custody Trial                                                                                                                                                                                                                                     

                                                               The custody trial was not held as planned on January 14, 2016, because                                                                                                                                                                                                                                              

Terrace - then a soldier in the United States Army - was arrested and imprisoned by                                                                                                                                                                                                                                                                                                                          

military authorities in late October 2015.                                                                                                                                                          The superior court vacated the trial date and                                                 

instead held a trial setting conference on January 28.                                                                                                                                                                                                     

                                                               At theJanuary28conference,                                                                                                                Terrace's attorney representedthathedid                                                                                                                                                          not  

know anything about Terrace's status except that Terrace was "in custody."  Wendy's                                                                                                                                                                                                                      

attorney had more information.                                                                                                                       He said that Terrace was being kept in a military prison                                                                                                                                                                               

outside Alaska and that Terrace's criminal defense attorney was "working on a potential                                                                                                                                                                                                                                                                                    

deal that w[ould] leave him incarcerated for approximately three years."                                                                                                                                                                                                                                                                                                 With the   

consent of both parties, the superior court continued the trial setting conference to                                                                                                                                                                                                                                                                                                                         

March 23.                                          

                                                               When the parties returned on March 23, Terrace's attorney explained that                                                                                                                                                                                                                                                                

he had "tried to find out how long [Terrace was] going to be incarcerated" but that he                                                                                                                                                                                                                                                                                                                        

had not been successful:                                                                                            "[N]obody knows because he's still pretrial."                                                                                                                                                                            When asked by                                                   

the court how he would like to proceed, he replied, "I guess I would like to just see if we                                                                                                                                                                                                                                                                                                                

could kick the can down the road some more . . . till we see how things shake out down                                                                                                                                                                                                                                                                                                        

there."   With the consent of Wendy's attorney, the court again continued the matter.                                                                                                                                                                                                                                                                                                                            

                                2                               (...continued)  


requested a child support order so Terrace's obligations would be clear and so she could  


"seek enforcement" if necessary.  

                                                                                                                                                                                                       -3-                                                                                                                                                                                         7249

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


                    Additional trial setting conferences were held on July 20, August 24, and  


September 7.  At each of these conferences, Terrace's attorney indicated that he had not  


been in contact with Terrace.  He stated, however, that he had spoken with Terrace's  


mother and had tried to reach Terrace's fiancée. Moreover, at the August 24 conference,  


he said he had learned that Terrace had been convicted in a court-martial and sentenced  


to 12 years' imprisonment.  The superior court advised Terrace's attorney at each of  


these conferences that he needed to find out fromTerrace how he wanted to proceed with  


the case.  The court moreover expressed concern about "needless[]" hearings and the  


resulting attorneys' fees.  


                    A final trial setting  conference was held  on  September  28.                                  Terrace's  


attorney  indicated  at  that  time  that  he  had  been  in  contact  with  Terrace,  who  was  


imprisoned at Fort Leavenworth, Kansas.  Terrace's attorney requested that the court  


schedule a trial on custody "sometime in the next couple of months." Wendy's attorney  


agreed,  and  the  court  set  a  pretrial  conference  for  November  2  and  a  trial  for  


November 18.  


                    At the November 2 pretrial conference, Terrace's attorney stated that he  


"finally [had] a half-decent pipeline to talk to" Terrace and that he had spoken with  


Terrace again since the September 28 hearing.  He explained, though, that his phone  


conversations with Terrace had to be approved 72 hours in advance by the authorities at  


Fort Leavenworth.  


                    The superior court suggested that the court and the parties plan to "go  


forward" with the November 18 trial regardless of whether Terrace would be able to  


participate.  Terrace's and Wendy's attorneys both consented to this plan.  Terrace's  


attorney "warn[ed] thecourt,"however, that Terracewas "talking about wanting to delay  


the trial date."  The court responded that it would not further continue the trial "[a]bsent  


good cause."  In particular, the court explained:  "The fact that the phone contacts back  

                                                               -4-                                                         7249

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

to [Fort] Leavenworth . . . don't go through for whatever reason, I likely won't consider                                                                 

that good cause.                  These are all things for you to iron out between now and then, but the                                                            

case needs to go forward."                            

             C.           The Custody Trial            

                          Terrace   did   not   appear   at   the   November   18,   2016   custody   trial.     His  

attorney said that the officials at Fort Leavenworth had "refused" to allow him to appear                                                                    



                                 The attorney explained:  


                          [I]t turns out to be a really big deal to get . . . an inmate on the  


                          phone.  You have to give them a three days heads up . . . [.]  


                          I mean we've been after this for weeks but then finally earlier  


                          in the week . . . the Specialist I've been dealing with in the  


                          command judgeadvocate's office inthedisciplinary barracks  


                          said  that  he'd  see  what  he  could  do  quote  unquote  for  


                          Friday[, November 18].  Then yesterday he came back and  


                          unequivocally said we don't do Fridays.  But we do Monday  


                          through Thursdays.  


Terrace's  attorney  requested  "a  delay  until  [Terrace]  can  be  on  the  phone  which  


evidently is a Monday through Thursday."  


                          Wendy's attorney noted that since January 2016 the court had repeatedly  


continued the case "because of [Terrace's] situation" and that the court had been "real  


clear about where things stood" at the November 2 hearing.  He recommended the court  


"move forward" with the trial.  


                          The superior court agreed with Wendy's attorney and denied the request  


to further continue the trial:  


                          [For] quite some time now this case . . . has been sort of  


                          kick[ed]  down  the  road[,]  always  trying  to  accommodate  


                          [Terrace's]  court-martial  issues  and  timing  and  then  .  .  .  



                          Terrace's attorney had tried (and failed) to bring this to the court's attention  


the day before the trial.  

                                                                                  -5-                                                                           7249  

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


                    issues with getting him on the phone from Leavenworth[.]  


                     [A]nd at the last pre-trial conference November 2, . . . we  


                    address[ed] this and said the case would go forward today  


                    absent good cause and I'm not finding [there] to be good  


                    cause[.]  [L]et me explain why.  The situation doesn't sound  


                    like it's going to get much better.  . . .  [Terrace] certainly is  


                    entitled to appear telephonically but [Wendy] is entitled to  


                    have her case tried.  [A]nd if there are . . . procedural issues  


                    with . . . Leavenworth, I have zero proof in front of me[:]  


                    letters, [a] motion to continue, letters or emails to and from  


                    Leavenworth as to efforts made or problems there.  . . .  [S]o  


                    I'm finding it not to be good cause so we will go forward.  


In response to the court's ruling, Terrace's attorney stated:  "[W]e don't have any email  


communication [with Fort Leavenworth].  We kept getting bounced around from one  


office to the other . . . ." The court replied: "My concern is what . . . [was] not presented  


to me by way of what was done to get your client on the line . . . ."  Terrace's attorney  


declined the court's invitation to further make a record.  


                    Wendy was the only witness at the custody trial.  She testified about her  


involvement in the children's lives and Terrace's purportedly minimal involvement. She  


also  testified  about  various  violent  and  criminal  acts  that  Terrace  had  allegedly  


committed.   According to Wendy, Terrace had broken down the door to their son's  


bedroom while the boy was inside, "punched . . . holes in the walls" of their home,  


physically attacked her in the presence of their children (possibly on more than one  


occasion), and woken up and punched her "in the middle of night" due to his "extreme  


PTSD."   Terrace had also allegedly  vandalized her car by stealing her car battery.  


Wendy further testified about Terrace's possible violations of a civil no-contact order in  


the divorce case and a domestic violence protective order in a related domestic violence  


case.  Terrace allegedly had entered the parties' home without Wendy's permission,  

                                                                -6-                                                         7249

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

called Wendy on the telephone, and sent Wendy menacing emails, in possible violation                                                               


of one or both of the orders.                           

                         The  superior  court  asked  Wendy  to  explain  Terrace's  court-martial  


convictions.  Wendy said she did not "remember all the exact details."  But she testified  


that some of the charges in that case had involved Terrace's physical abuse of her and  


the parties' children.  


                         The parties agreed Wendy should receive primary physical custody of the  


children.  Moreover, Terrace's counsel did not oppose Wendy's request that Terrace  


have contact with the children only via letters screened by Wendy.  Thus, the primary  


issue for the court was legal custody.  The court made findings on the best interests of  


the children and determined that the various statutory factors weighed against granting  


                                    5   For example, the court found that "the children [were] being in all  

custody to Terrace.                                                                                                                                             


respects appropriately and fully cared for and provided for by" Wendy but that Terrace  


was not "in a place where he c[ould] provide anything" to the children and that even  


when he was available to his children, "his emotions [and] his problems were getting the  


better of him."  


                         The court also made findings on Terrace's alleged domestic violence:  


                         I am finding that there's a history of domestic violence of two  


                         or more non-serious events[.]   [Wendy] touched on really  


                         quite a few and I won't articulate each one but she certainly  


                         went far beyond [the] mandatory minimum threshold of two  


                         . . . separate events . . . .   I don't know what the [court- 


                         martial] charges are[.]  [W]e just have [Wendy's] statements  


                          [that  domestic  violence  is]  what  he's  there  for[.]                                                 I'm  


             4           We   note   that   violation   of   a   civil   no-contact   order   does   not   in   itself  

constitute "domestic violence" as that term is defined by statute.                                                           Limeres v. Limeres                   ,  

320 P.3d 291, 299 (Alaska 2014).                     

             5           See AS 25.24.150(c).  


                                                                               -7-                                                                        7249

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

                                             presuming it's true but frankly I don't have to reach that issue                                                                                                                         

                                             . . . because I'm finding independent of that [court-martial]                                                                                          

                                             conviction that he has a history of [domestic violence] . . . .                                                                                                                                   

The court concluded that Terrace's history of perpetrating domestic violence precluded                                                                                                                                                                            

him from having custody of the children:                                                                                                       "[T]he law is quite clear. [Terrace] [c]an't                                                                                

have any custody, legal, primary, sole, joint, shared until he has completed the [domestic                                                                                                                                                                        

violence] course required by [s]tatute."                                                                                               The court awarded sole physical custody and                                                                                                    

sole legal custody to Wendy and adopted Wendy's proposal that Terrace have contact                                                                                                                                                                      

with the children only via screened letters.                                                                                                     

III.	                  DISCUSSION  

                      A.	                    The   Superior   Court   Did   Not   Abuse   Its   Discretion   In   Denying  

                                             Terrace's Final Motion To Continue The Custody Trial.                                                                                                                                

                                             Terrace claims the superior court erred when, on the day of the custody                                                                                                                                                    

trial, the court denied his motion to further continue the trial.                                                                                                                                                We review the superior   

court's denial of a continuance for abuse of discretion.                                                                                                                               6      As a general matter, refusal to  


grant a continuance constitutes an abuse of discretion if it "seriously prejudice[s]" a party  


or deprives him of a "substantial right."7  


                                                                                                                                               But a party seeking a continuance bears the  


burden of "show[ing] that he acted with due diligence upon the grounds for which  

                                                                               8     Accordingly, even if the denial of a continuance would result  


continuance is sought." 

                       6	                    Shooshanian v. Dire                                                   , 237 P.3d 618, 622 (Alaska 2010).                                                             

                       7                     Id. at 623 (quoting Siggelkow v. Siggelkow, 643 P.2d 985, 986-87 (Alaska  


 1982)).  Terrace does not argue that he was deprived of a substantial right but instead  


focuses exclusively on prejudice. We accordingly do not consider whether the denial of  


a continuance deprived Terrace of a substantial right.  


                       8                    Azimi v. Johns , 254 P.3d 1054, 1061 (Alaska 2011) (quoting Sparks v.  


 Gustafson, 750 P.2d 338, 341 (Alaska 1988)).  


                                                                                                                                             -8-	                                                                                                                                  7249

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

in   prejudice,   a   continuance   is   not   warranted   if   the   prejudice   is   the   product   of   the  


movant's own "lack of diligence."                          

                     The superior court did not abuse its discretion in denying Terrace's final  


motion for a continuance because Terrace failed to demonstrate that he or his attorney  


acted diligently in securing his appearance at the custody trial. Terrace's attorney did not  


indicate at the January 28 or March 23, 2016 trial setting conferences whether he had  


been  in  contact  with  Terrace.                    And  at  the  July  20,  August  24,  and  September  7  


conferences, he expressly acknowledged that he had not been in contact with Terrace -  


despite the court's repeated instructions that he do so.   Terrace's attorney made no  


significant representations as to the extent of his efforts to reach Terrace during this time  


or  the  obstacles  posed  by  Terrace's  imprisonment.                                  He  briefly  stated  that  he  had  


contacted Terrace's mother and attempted to contact Terrace's fiancée, but he did not  


elaborate, and he did not indicate whether he had contacted or made any efforts to  


contact Terrace's criminal defense attorney.  Moreover, there is nothing in the record  


about Terrace's attempts to reach his attorney.  


                     Terrace's attorney finally managed to contact Terrace before the final trial  


setting conference on September 28, and the superior court accordingly scheduled a date  


for the custody trial.   At the pretrial conference on November 2, the court warned  


Terrace's attorney that it was unlikely to further continue the trial and specifically  


admonished him about the need  to "iron out" any communication issues with Fort  


Leavenworth. Despitethiswarning, Terrace'sattorney,in attempting tosecureTerrace's  


appearanceat trial, relied solelyonanunnamed Army specialist'soral representation that  


"he'd see what he could do."  The superior court implicitly found that this reliance was  




                     Siggelkow, 643 P.2d at 988.  

                                                                   -9-                                                                7249  

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

unreasonable, noting the failure of Terrace's attorney to proffer any "letters or emails to                                                                                                                                        

and from Leavenworth" regarding efforts made for Terrace to attend trial.                                                                                                                               

                                    Given the failure of Terrace's attorney to explain why it took so long for        

him to get in contact with Terrace, and given the attorney's minimal efforts to secure                                                                                                                                 

Terrace's appearance at the custody trial, the superior court did not err in concluding that                                                                                                                                   

his showing of due diligence was inadequate to warrant a further continuance.                                                                                                                                        

                                                                                                                                                                                                                        10   and  

                                    In   arguing   to   the contrary, Terrace relies on                                                                           Johnson v.                       Schaub                    


 Wagner v. Wagner,                                          cases in which we reversed denials of continuances.  But these  


cases do not help Terrace.  In Johnson "the record d[id] not indicate any abuse of trial  


process" by the parties requesting the continuance.12                                                                                             In the present case, by contrast,  


Terrace's counsel repeatedly requested - and was granted - continuances despite the  


lack of any representations or evidence that he was making a good faith effort to get in  


touch with his client, and he made his final continuance request on the day of trial, after  


Wendy and her counsel had presumably invested time and other resources preparing.  


Moreover,  in  Johnson,  unlike  the  present  case,  the  plaintiff  did  not  oppose  the  


defendants' motion for a continuance.13  


                                     Wagner is also distinguishable.  In that case the superior court denied a  


party's motion for a continuance without addressing his argument that his job duties  


precluded  his  appearance.14                                                     But  in  the  present  case,  the  superior  court  addressed  


                  10                867 P.2d 812 (Alaska 1994).                                 



                                    299 P.3d 170 (Alaska 2013).  



                                    Johnson, 867 P.2d at 816.  



                                    Id. at 814, 816.  

                  14                 Wagner, 299 P.3d at 175.                                

                                                                                                               -10-                                                                                                        7249

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

Terrace's attorney's explanation for why Terrace was unable to appear and rejected it,                                                                                                                      

finding there was "zero proof" that he had made diligent efforts to secure Terrace's                                                                                                                                      


                                      Terrace   further   argues   that   the   superior   court   abused   its   discretion   in  

denying his motion because a continuance would not have prejudiced Wendy. He notes                                                                                                                                                     

that before the day of the trial, Wendy had not opposed continuing the trial. And he also                                                                                                                                                  

points out that Wendy already had interim custody of the children and was protected by                                                                                                                                                         

a civil no-contact order and a domestic violence protective order.                                                                                                                         This argument lacks                         

merit.   A party can reasonably consent to a continuance at a trial setting conference but                                                                                                                                                   

be unwilling to consent to a continuance on the day of trial.                                                                                                                        In the latter situation,              

counsel has spent time preparing for trial, and the witnesses (in this case, Wendy) have                                                                                                                                                 

                                                                                                                                                          15      And even if Wendy was in a  

arranged their schedules to enable their participation.                                                                                                                                                                                           

secure position - with interim custody of the children and court orders in place that  


protected her and the children - the superior court and Wendy both had an interest in  


expeditiously resolving the custody case, which had dragged on for over a year after the  


end of the property  and  child support trial.16                                                                                          The superior  court did not abuse its  


discretion in denying Terrace's motion to continue.  


                   B.	                The  Superior  Court  Made  Insufficient  Findings  To  Support  Its  


                                      Conclusion That Terrace Has A History Of Perpetrating Domestic  



                                      Terrace next argues that the superior court erred when it concluded he has  


                   15                 See   United   States   v.   Sinclair,   770  F.3d   1148,   1154   (7th   Cir.   2014)  

("[L]ate-breaking continuances can be especially costly.").                                                                                   

                   16                 See Shooshanian v. Dire, 237 P.3d 618, 623 (Alaska 2010) (noting "the  


necessity for orderly, prompt and effective disposition of litigation and the loss and  


hardship to the parties [and] witnesses" caused by delay (alteration in original) (quoting  


Siggelkow v. Siggelkow, 643 P.2d 985, 987 (Alaska 1982))).  


                                                                                                                     -11-	                                                                                                              7249

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

a history of perpetrating domestic violence.                                                    This conclusion triggered a rebuttable                       


presumptionthatTerraceshould                                      not have custody of the parties' children.                                                              



not dispute that Wendy's testimony, if properly credited, was sufficient to establish that  


he has a history of perpetrating domestic violence.  But he argues that the record was  


inadequate to allow the court to "meaningfully assess [the] credibility" of Wendy's  


domestic violence testimony.   And he  complains that the court "did not . . . make  


findings as to any particular incident or incidents" of domestic violence.  


                            "A parent has a history of perpetrating domestic violence" if the superior  


court finds that the parent "caused serious physical injury" during a single incident of  

                                                                                                                                                                        18    In  


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

reviewing the superior court's determination that a parent has a history of perpetrating  


domestic  violence,  we  accept  the  court's  factual  findings  unless  they  are  clearly  


erroneous.19   A finding is clearly erroneous if "a review of the record leaves [us] with a  


definite and firm conviction that the superior court has made a mistake."20  


                           Whether   the  superior   court's  findings  are  sufficient  to  support  a  


determination that a parent has a history of perpetrating domestic violence is a legal  


question.21               In  deciding legal questions,  we rely  on  our  independent judgment and  


              17           AS 25.24.150(g)-(h).   

              18           AS25.24.150(h);                      seealso         AS18.66.990(3)                     (defining"domesticviolence");             

AS 25.90.010 (stating that the term "domestic violence," as used in the marital and                                                                                        

domestic relations statutes, has the meaning defined in AS 18.66.990).  


              19           Faye H. v. James B., 348 P.3d 876, 878 (Alaska 2015).  


              20           Id. (quoting Frackman v. Enzor, 327 P.3d 878, 882 (Alaska 2014)).  


              21           Id.  

                                                                                     -12-                                                                               7249

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

"adopt[] the rule of law most persuasive in light of precedent, reason, and policy."                                                                         22  


                          1.	         The  record  was  sufficient  to  allow  the  superior  court  to  


                                      meaningfully assess Wendy's credibility.  


                          We reject Terrace's argument that the trial record was insufficient to permit  


thesuperior courtto "meaningfully assess"thecredibility ofWendy's claims ofdomestic  


violence.  Terrace contends that because he was not present at the custody trial, and  


because Wendy  was the only  witness,  the court lacked a basis on which  to  assess  


Wendy's credibility.  But the superior court heard live testimony from Wendy and thus  



was able to observe her demeanor and vocal inflections.                                                       And the custody trial was not  


an ex parte proceeding: Terrace's attorney had an opportunity to cross-examine Wendy  


and present evidence in Terrace's favor, and he did in fact cross-examine Wendy and  



attempt to impeach her testimony.                                      The superior court thus had an adequate basis on  


which to assess Wendy's credibility.  


                          Terrace contends that there are grounds in the record to doubt Wendy's  


credibility as to the alleged incidents of domestic violence.  In particular Terrace points  


out that Wendy sent an email to him in July 2015 conceding that he had not committed  

             22	         Dodge v. Sturdevant                     , 335 P.3d 510, 511 (Alaska 2014).                     



                          Cf.  Whitesides  v.  State,  Dep't  of  Pub.  Safety,  Div.  of  Motor  Vehicles,  


20 P.3d 1130, 1136-37 (Alaska 2001) (explaining the importance of observing in-person  

testimony in assessing a witness's credibility);                                              Curry v. Tucker                , 616 P.2d 8, 12 n.3              


(Alaska 1980) ("Determinations of credibility are for the trier of fact . . . because, unlike  


the reviewing court, the trier of fact saw the witnesses testify, heard the inflection of their  

voices and observed their relative candor in answering questions.").                                      

             24          See L.C.H. v. T.S., 28 P.3d 915, 922 (Alaska 2001) (noting that "cross- 


examination and impeachment" are "the traditional tests" for determining a witness's  


"reliability and credibility").  


                                                                               -13-	                                                                        7249

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

any "criminal offenses" and characterizing him as a mere verbal "bully." He also points                                                                                                   

out that Wendy had asked the Army to drop the court-martial against Terrace.                                                                                                         

                               In making this argument,                                 Terraceis              effectively asking us to assess                                    Wendy's  

credibility on the cold record and override the superior court's decision to credit her                                                                                          

testimony.   But "[i]t is . . . the function of the superior court" - not the function of this                                                                                                 

                                                                                                                                                                     25   In any case,  

court - "to judge witness credibility and weigh conflicting evidence."                                                                                                                      

Wendy explained in her testimony that she sent the email and made the request to drop  


the court-martial because at that time she was trying to reconcile with Terrace.   Her  


attitude towards Terrace subsequently changed, however, when she realized that he was  


not  making  any  progress  with  his  anger  problems  or  substance  abuse.                                                                                                     Wendy's  


explanation was not inherently incredible and, if believed, served to undermine the  


supposed impeaching force of her conduct.  The superior court did not clearly err in  


crediting Wendy's testimony.  


                               2.	            The   superior   court's   domestic   violence   findings   are   not  


                                              sufficient to permit meaningful appellate review.  


                               Although we reject Terrace's argument that the record was insufficient to  


support the superior court's domestic violence determination, we agree with his alternate  


argument that the court made inadequate findings.  As a general matter, "the superior  


court must . . . make its findings with sufficient specificity that we may review both the  


grounds for its decision and its application of the law to the facts."26                                                                                        Specific findings  


are especially crucial when the superior court makes a determination as to a parent's  


               25             Price  v.  Eastham,   128  P.3d  725,  731  (Alaska  2006).  

               26             Id.   

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 history of perpetrating domestic violence.                                                                This determination is a critical one since it                                                       

 will often control the court's ruling on custody and visitation.                                                                                     28  

                                 The superior court's findings in this case are inadequate because they do  


 not permit us to review the court's domestic violence determination.  Wendy described  


 some violent and apparently criminal incidents involving Terrace, but the court made no  


 findings concerning these incidents except to remark that they "went far beyond [the]  


 mandatory minimum threshold of two . . . separate [domestic violence] events."  The  


 court did not make findings as to what actually happened during these incidents, state  


 which of these incidents involved domestic violence crimes, or indicate what crimes  


 were committed.29  


                                 These  deficiencies  are  problematic  because  even  if  the  court  credited  


 Wendy's testimony in full, as it apparently did, the court still needed to exercise its  


judgment in drawing inferences from the testimony. For any given incident that Wendy  


 described, the court needed to determine whether Wendy's testimony established the  


                 27              See, e.g.           ,  Bruce H. v. Jennifer L.                                 , 407 P.3d 432, 439 n.34 (Alaska 2017)                                             

 ("We generally require detailed domestic violence findings when a party alleges that the                                                                                                                  

 domestic violence presumption should apply.");                                                                     Sarah D. v. John D.                             , 352 P.3d 419, 429                  

 (Alaska 2015) ("The superior court must make detailed findings on alleged incidents of                                                                                                                      

 domestic   violence.");   Faye   H.   v.   James  B.,   348   P.3d   876,   879-80   (Alaska   2015)  

 ("[W]here a superior court finds that domestic violence occurred, it must make express                                                                                                         

 findings regarding whether the incident or incidents of domestic violence constitute a                                                                                                                        

 'history of perpetrating domestic violence' under AS 25.24.150(h)." (quoting                                                                                                               Williams  

 v.  Barbee, 243 P.3d 995, 1004 (Alaska 2010))).                                                 

                 28              See AS 25.24.150 (g)-(h), (j).  


                 29              See AS18.66.990(3) (listing crimesinvolvingdomesticviolence); cf. Parks  


 v. Parks, 214 P.3d 295, 300 (Alaska 2009) (reversing superior court's determination that  


 husband's  act  of  throwing  water  at  wife  "was  not  'sufficient  misconduct'  "  to  be  


 domestic violence, and requiring court on remand to determine whether act satisfied  


 elements of attempted fourth-degree assault, a crime of domestic violence).  


                                                                                                    -15-                                                                                              7249

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elements of a domestic violence crime.                                                                30  There is nothing in the record demonstrating                                        

that the superior court did so and thus nothing that permits us to review the court's                                                                                                                            


                                   Although we could perhaps independently review the record and "derive                                             

bases on which the [superior] court could . . . permissibly" have found that at least two                                                                                                                                

crimes of domestic violence had been committed, it is not the function of an appellate                                                                                                                      

                                       31      The superior court, having heard live testimony, is in a much better  

court to do so.                                                                                                                                                                                                     

position than we are to determine the proper inferences to be drawn from the evidence  


in this case.32                       We therefore must remand for further consideration and findings by the  


superior court unless its failure to make adequate findings was harmless.33  


                                   At  first  glance  the  deficiency  in  the  findings  appears  harmless.                                                                                                             The  


superior  court's  custody  and  visitation  determinations  were  based  in  large  part  on  


Terrace's concession that Wendy should have physical custody and his failure to dispute  


Wendy's proposal that he contact the children only through mail screened by Wendy.  


And the court's custody and visitation determinations are otherwise strongly supported  


by the record:  It was undisputed that Terrace had just been sentenced to 12 years in  


prison, and as the court explained, the evidence showed that Terrace's "emotions" and  


                  30               See Limeres v. Limeres                                         , 320 P.3d 291, 299 (Alaska 2014) (faulting the                                                                          

superior court for (1) failing to make findings on whether a parent possessed the mental                                                                                                                          

state needed to commit the crime of violating a protective order, a crime of domestic                                                                                                                       

violence, and (2) failing to make findings on whether the parent's conduct constituted   

"harassment, stalking, or assault that could amount to a crime of domestic violence").                                                                                                              

                  31                Urban Dev. Co. v. Dekreon, 526 P.2d 325, 328 (Alaska 1974).  


                  32               Asher v. Alkan Shelter, LLC, 212 P.3d 772, 780 (Alaska 2009), overruled  


on other grounds by Shaffer v. Bellows, 260 P.3d 1064 (Alaska 2011).  


                  33               See Alaska R. Civ. P. 61 ("The court . . . must disregard any error or defect  


 . . . which does not affect the substantial rights of the parties.").  


                                                                                                            -16-                                                                                                      7249

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

"problems" precluded him from meeting the children's needs.                                                                                                                                                            We can thus affirm the   

superior court's custody and visitation determinations even though the court's findings                                                                                                                                                                                     

are insufficient to allow us to review its domestic violence determination.                                                                                                                               

                                              But   a   closer   look   reveals   that   the   superior   court's   domestic   violence  

determination affected the judgment in one material way.                                                                                                                                                       Had the court come out                                                       

differently on the domestic violence issue, it would not have required Terrace to comply                                                                                                                                                                                       

"with the mandates of AS 25.24.150(h)."                                                                                                        This statute imposes burdens that will make                                                                                           

                                                                                                                                                                                                                                                              34   Thus, the  

it more difficult for Terrace to regain custody of his children in the future.                                                                                                                                                                                                               

absence of adequate findings to permit us to review the domestic violence determination  


is not harmless error and requires us to vacate the superior court's determination and  


remand for additional findings regarding domestic violence.  


IV.                    CONCLUSION  


                                              We VACATE the superior court's determination that Terrace has a history  


of perpetrating domestic violence and REMAND the matter for the court to reconsider  


this determination.  In reconsidering the domestic violence determination, the superior  


court should make findings sufficient to permit adequate appellate review. We AFFIRM  


the superior court's judgment in all other respects.  We do not retain jurisdiction.  


                       34                     AS 25.24.150(h) provides that the presumption against a perpetrator of                                                                                                                                                                            

domestic violence having custody of children "may be overcome by a preponderance of                                                                                                                                                                                                              

the evidence that the perpetrating parent has successfully completed an intervention                                                                                                                                                                         

program for batterers, where reasonably available, that the parent does not engage in                                                                                                                                                                                                            

substance abuse, and that the best interests of the child require that parent's participation                                                                                                                                                                

as a custodial parent."                         

                                                                                                                                             -17-                                                                                                                                      7249

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