Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions

Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.


You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Pingree v. Cossette (7/27/2018) sp-7263

Pingree v. Cossette (7/27/2018) sp-7263

           Notice:   This opinion is subject to correction before publication in the P                     ACIFIC  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                                       

BETH  PINGREE,                                                        )  

                                                                      )     Supreme  Court  No.  S-16763  

                                 Appellant,                           )  


                                                                      )     Superior Court No. 3KO-15-00276 CI  

           v.                                                         )  


                                                                      )     O P I N I O N  


ANDRE COSSETTE,                                                       )  


                                                                      )     No. 7263 - July 27, 2018  

                                 Appellee.                            )  



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


                      Judicial District, Kodiak, Pat L. Douglass and William F.  


                      Morse, Judges.  


                      Appearances: Melvin M. Stephens, II,Kodiak, for Appellant.  


                      Jill C. Wittenbrader, Law Office of Jill Wittenbrader, LLC,  


                      Kodiak, for Appellee.  


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


                      Carney, Justices.  [Bolger, Justice, not participating.]  


                      WINFREE, Justice.  



                      A couple had a daughter together and then separated while she was still  


very young.  The parents lived in different towns and alternated physical custody of the  


daughter.   After they were unable to agree on a permanent arrangement for shared  


custody,  the  mother  filed  a  complaint  for  primary  physical  custody  and  the  father  


counterclaimed for the same.  Both parents wanted primary physical custody during the  

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


school year; the father, a commercial fisherman, was unavailablefor twoto threesummer  


months each year. The superior court found that equal custody time was appropriate but  


impossible given the separate domicile locations, and also that minimal custodial time  


with the father would be harmful to the daughter.  The court therefore awarded primary  


physical  custody  to  the  father,  so  long  as  the  parents  continue  to  live  in  separate  


locations.  The mother appeals.  Seeing no reversible error in the court's evidentiary  


decisions, factual findings, or discretionary decisions, we affirm the superior court's  


custody decree.  




                    Beth Pingree and Andre Cossette lived together in Kodiak; in August 2013  


Beth gave birth to their daughter.   Their daughter lived with Beth and Andre in the  


Kodiak home or at the Pingree family lodge near Uganik.  Beth was with their daughter  


most of the time, and Andre was with the two of them when not commercial fishing.  


                    Beth  and  Andre  separated  in  February  2015,  when  Beth  ended  the  


relationship and permanently moved to Uganik, taking their daughter with her.  Andre  


remained in contact with their daughter when Beth traveled to Kodiak and when he  


visited Uganik.  In October Beth and their daughter visited Andre in Kodiak to discuss  


a custody plan, but discussions broke down and Beth and their daughter returned to  


Uganik.  Beth then emailed Andre, telling him that she would not return to Kodiak with  


their daughter, that he was not welcome in Uganik, and that she did not want him to  


contact her.         Andre responded  through counsel by  proposing a week-on,  week-off  


custody plan, to which Beth eventually agreed.  


                    In November Beth filed a custody complaint, requesting primary physical  


custody  and  joint  legal  custody.                  Andre  answered  and  counterclaimed  for  primary  


physical custody.  The superior court held an interim custody hearing in mid-February  


2016 and found that the statutory best interests factors were either inapplicable, weighed  

                                                               -2-                                                         7263

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


equally for both parents, or weighed equally against both parents.  The court concluded  


that equal time with both parents was in their daughter's best interests and ordered the  


week-on, week-off schedule to continue.  


                    Thecourtappointed acustody investigator to assess thecase. Theweek-on,  


week-off schedule continued during the investigation until August, when Beth moved  


to Soldotna to pursue Emergency Medical Technician (EMT) training.   Andre then  


moved for custody modification, arguing that weekly travel from Kodiak to Soldotna  


was prohibitively expensive.  The court found the move was a substantial change in  


circumstances and modified the interim custody arrangement to a month-on, month-off  


schedule to reduce transitions.   Beth later moved to Homer, working as a volunteer  


firefighter/EMT with the goal of permanent employment at the local fire station.  The  


move to Homer did not affect the month-on, month-off schedule.  


                    The case was reassigned to another superior court judge in February 2017,  


who presided over a two-day hearing on March 15 and May 2.  Beth and Andre agreed  


on joint legal custody, but each sought primary physical custody; both parents wanted  


physical custody during the school year.  


                    Beth  testified  about  background  information  and  discussed  her  life  in  


Homer. Beth also testified that their daughter's first years had been primarily lived with  


Beth and that she had tried to facilitate their daughter's relationship with Andre.  Beth  


and her supporting witnesses testified about the daughter's emotional distress at leaving  


Beth and the daughter's changed behavior while with Andre.  They reported that she  


regressed in potty-training, wet herself repeatedly, could no longer sleep without milk,  


refused to let Beth leave her sight, became remote and brooding, and had repeated  


nightmares. Beth reportedoneespeciallytroublingincident when their daughter returned  


from Kodiak and made several statements suggesting sexual abuse.   Beth took their  


daughter to have medical exams twice, but neither exam could be completed because the  

                                                               -3-                                                         7263

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


daughter  refused  to  let  a  practitioner  examine  her  below  the  waist.                                  An  Office  of  


Children's Services (OCS) social worker who worked with the family to respond to the  


incident testified that OCS investigated, but, after concluding that it was being drawn  


into a custody battle, it closed the case.  A retired judge from Minnesota who regularly  


visited the Pingree lodge testified that the daughter was exhibiting extreme behavior, and  


he opined that Beth should receive primary custody.  


                    Beth also sought to introduce into evidence four questionnaires submitted  


by her witnesses to the custody investigator.  Andre objected that the questionnaires  


"contain[ed] a lot of hearsay statements" and the superior court excluded all four.  


                    Andre testified about his own view of the background information and  


described his caring for their daughter as a baby and pre-separation.   He also testified  


about their daughter's life in Kodiak, the enrichment activities he provided her, and how  


he had not noticed any behavioral distress while she was with him.  Andre testified that  


he fished or worked various jobs throughout the year but that he was guaranteed to be  


salmon fishing in Bristol Bay every June and July. Andre's friends and family supported  


his testimony that the daughter was happy and thriving when with him, as did Sun'aq  


tribal workers who provided him parenting classes.  A pilot who facilitated some of the  


transitions between Uganik and Kodiak testified that he did not notice anything unusual  


at transitions like the distress Beth was reporting.  


                    Throughout  the  hearing  there  was  evidence  that  Beth  used  corporal  


punishment on the daughter by switching her with an alder twig.  The superior court  


made three comments suggesting its disapproval of the practice, including that it would  


order Beth to stop the switching because it was close to a criminal act.  But the court  


apparently did not issue such an order.  


                    The superior court entered a custody order in June, awarding joint legal  


custody and primary physical custody to Andre.  The custody order began with a case  

                                                                -4-                                                         7263

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

synopsis andfact                                         summary. The                                       court summarized each party's evidence, thedaughter's   

behavioral issues, and the issue of potential sexual abuse.                                                                                                                                                  The court attributed the                                                   

daughter's behavioral difficulties to the on-off transitions, finding that her behavior                                                                                                                                                                              

subsided after the change to a month-on, month-off schedule, and it did not make any                                                                                                                                                                                                   

findings about sexual abuse.                                                                       The court also noted, without further analysis, that Beth                                                                                                                       

used a switch and that she did not think it was inappropriate.                                                                                                                                               The court then found that                                                 

none of the witnesses were lying and that all of the testimony "was basically true."                                                                                                                                                                                                  But  

the court also found the retired judge was unnecessarily "eager[] to express his opinion,"                                                                                                                                                                          

and   it   disregarded   his   testimony.     The   custody   order   did   not   refer   to  the   custody  

investigation report or custody investigator's testimony in any way.                                                                                                                                                                   

                                             The custody order then set forth the court's analysis.                                                                                                                                The custody order                              

contained a general analysis of the daughter's best interests roughly corresponding to the                                                                                                                                                                                                

                                                                                                      1   The court found that:  the daughter had the usual needs  

statutory best interests factors.                                                                                                                                                                                                                                               

of a three-year-old child and her only special needs were caused by her parents living  


apart; both parents were capable, could care for their daughter, and did care for her; the  


daughter was too young to have a parental preference; both parents loved their daughter  


and their daughter loved them; the daughter spent most of her young life with Beth but  


the daughter's life with Andre was "impress[ive]," and she should continue having "as  


close to equal time with each parent" as possible; Beth was resistant to letting Andre play  


an equal role in their daughter's life; there was no evidence of domestic violence; and  


there was no evidence of substance abuse.  


                                             The court found that having equal time with each parent would not be  


possible unless the parents lived in the same community.   The court then found that  


                       1                     See  AS 25.24.150(c) ("The court shall determine custody in accordance                                                                                                                                          

with the best interests of the child . . . .                                                                               In determining the best interests of the child the                                                                                                             

court shall consider [eight factors plus any other relevant factors].").                                                                                                                           

                                                                                                                                              -5-                                                                                                                                  7263

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

giving Beth primary physical custody would be harmful to the daughter because she                                                                                                             

would only see Andre for four weeks a year, as he would be fishing during his summer                                                                                                

custody.    The court therefore gave Andre primary physical custody beginning when                                                                                                       

school started, with Beth having summer visitation, contingent on the parents continuing                                                                                      

to live in different towns.                                  

                               Beth appeals.                   

III.            STANDARD OF REVIEW                         

                               Superior courts are vested with "broad discretion" in making child custody                                                                            



                             "We will reverse a trial court's resolution of custody issues only if . . .  


convinced that the record shows an abuse of discretion or if controlling factual findings  



                                                           The superior court abuses its discretion when it assigns too  

are clearly erroneous." 

                                                                                                                                4    fails  to  consider  statutorily  



much  weight  to  some  factors  while  ignoring  others, 

mandated  factors,5                                                                                                                                                 6  


                                               elevates  the  parents'  interests  above  the  child's,                                                                  or  considers  

                                                  7  A fact finding is clearly erroneous when our "reviewof the entire  


impermissible factors. 

               2               Vachon  v.  Pugliese,  931  P.2d  371,  375  (Alaska   1996).  

               3              Id.  (quoting  Gratrix  v.  Gratrix,  652  P.2d  76,  79-80  (Alaska   1982)).  

               4              Id.  (quoting  Gratrix,  652  P.2d  at  80).  

               5               Chesser  v.  Chesser-Witmer,   178  P.3d   1154,   1157  (Alaska  2008)  (quoting  

J.L.P.  v.   V.L.A.,  30  P.3d  590,  594  (Alaska  2001)).  

                6              Vachon,  931  P.2d  at  375  (quoting  Gratrix,  652  P.2d  at  80).  

               7               Carle  v.  Carle,  503  P.2d   1050,   1055  (Alaska 1972),  superseded on  other  

grounds by statute, ch. 63,  30, SLA 1977.  Whether a factor itself is permissible or  



impermissible, however, we decide using our independent judgment. See id. ("We think  


it is not permissible, in a bicultural context, to decide a child's custody on the hypothesis  


that it is necessary to facilitate the child's adjustment to what is believed to be the  


dominant culture.  Such judgments are, in our view, not relevant to the determination of  



                                                                                                -6-                                                                                       7263

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


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


"The  trial  court's  factual  findings  enjoy  particular  deference  when  they  are  based  


 'primarily on oral testimony, because the trial court, not this court, judges the credibility  

                                                                                       9   Clearly erroneous fact findings are  



of witnesses and weighs conflicting evidence.' " 

reversible error when they are "controlling," but not if they are immaterial.10                                                                   The  


superior court's evidentiary decisions are reviewed for abuse of discretion.11  


IV.	        DISCUSSION  

                        Beth argues that the superior court erred in evidentiary decisions, factual  

findings, and the ultimate custody decision.  We address each of her arguments in turn.  


            A.	         The        Custody             Order           Is     Not        Legally           Flawed            By       Erroneous  


                        Consideration Of The Evidence.  


                        Beth argues that the final custody order is "flawed by an inappropriately  


selective consideration and discussion of the evidence." She contends the superior court  


erred by:   (1) failing to discuss the custody investigation report; (2) excluding four  


questionnaires that informed the custody investigator's report; and (3) disregarding the  


retired judge's testimony.  We see no error.  


            7           (...continued)  


custody issues.").  

            8	          Millette v. Millette             , 177 P.3d 258, 261 (Alaska 2008) (quoting                                    Dingeman  

v.  Dingeman, 865 P.2d 94, 96 (Alaska 1993)).                         

            9	          Sheffield v. Sheffield, 265 P.3d 332, 335 (Alaska 2011) (quoting Josephine  


B. v. State, Dep't of Health &Soc. Servs., Office of Children's Servs., 174 P.3d 217, 222  


(Alaska 2007)).  


            10          See Vachon, 931 P.2d at 375 ("We will reverse a trial court's resolution of  


custody issues only if . . . convinced that . . . controlling factual findings are clearly  


erroneous." (emphasis added) (quoting Gratrix, 652 P.2d at 79-80)).  


            11          Marron v. Stromstad, 123 P.3d 992, 998 (Alaska 2005).  


                                                                          -7-	                                                                   7263

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

                           First, Beth argues that "the trial judge . . . should not be permitted to ignore                                                     

the custody investigator's input without comment," or, alternatively, that failing to do so                                                                              

was an abuse of discretion "on the facts of this case."                                                       But we addressed and rejected                  

                                                                              12  In that case a parent argued that the superior  

identical arguments in  Chase v. Chase.                                                                                                              

court abused its discretion because it "simply ignored the custody investigator's report  


without explaining why the court chose to disregard the report."13                                                                         We rejected that  


argument, holding that "the trial court is not obligated to adopt a custody investigator's  


recommendations" and "is under no obligation to make specific findings regarding the  


report as long as the court considers the appropriate statutory factors."14  


                           To the extent Beth wants a per se rule that a court must at least discuss a  


custody investigator's report when it disagrees with the custody investigator, that rule  


                                                                             15  To the extent Beth is arguing only that it was  

was considered and rejected in Chase.                                                                                        


an abuse of discretion not to discuss the custody investigator's report in this case, this  


                                                                         16  We therefore hold that the superior court did not  

case is indistinguishable from Chase.                                                                                                                                  


abuse its discretion by failing to discuss the custody investigator's report.  


             12            109  P.3d  942,  945-46  (Alaska  2005).  

             13           Id.  at  945.  

             14           Id.  at  945-46.  

             15           See  id.  

             16           See  id.   Though  Beth  does  not  attempt  to  distinguish  Chase  on  this  ground,  

the  custody  investigator  apparently  did  not  testify  in  that  case.   But  the  difference  does  

not  affect  our  analysis;  "the  court  ordinarily  has  no  obligation  to  accept  expert  testimony  

when   it   finds   other   evidence   more   persuasive;   nor   is   the   court   bound   to   favor   the  

testimony  of  an  ostensibly  neutral  witness who is  unconvincing  over that  of  a  witness  

who  testifies  convincingly  despite  circumstances  suggesting  potential  bias."   Id.  at  946  

(quoting  Evans  v.  Evans,  869  P.2d  478,  480  (Alaska   1994)).  

                                                                                   -8-                                                                            7263

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

                            Second, Beth argues that the superior court should not have excluded each                                                                    

questionnaire in its entirety simply because it contained hearsay statements and that the                                                                                   

                                                                                                                  17) are admissible under the rule  

questionnaires themselves (which obviously are hearsay                                                                                                                    

                                                                                                                                                                     18  We  

ofcompleteness,AlaskaEvidenceRule106, to complete thecustody investigation.                                                                                                


find Beth's rule-of-completeness argument unpersuasive.19   Rule 106 provides:  "When  


a writing or recorded statement or part thereof is introduced by a party, an adverse party  


may require the  introduction at that time of any other part or any other writing or  


recorded statement which ought in fairness to beconsidered contemporaneously with it."  


The questionnaires are not admissible under this Rule. Rule 106 was adopted to prevent  


a party from creating a "misleading impression . . . by taking matters out of context."20  


              17           See  Alaska R. Evid. 801(c) ("Hearsay is a statement, other than one made                                                                   

by the declarant while testifying at the trial or hearing, offered in evidence to prove the                                                                                

truth of the matter asserted.").                                   Statements under this rule include writings, like the                                                   

questionnaires.    See   Alaska R. Evid. 801(a) ("A statement is . . . an oral or written                                                                          

assertion . . . .").         

              18            Beth cursorily mentions the common law rule of completeness and Alaska  


Evidence Rule 803(6) or (8) as alternative reasons for admission.  But these passing  


references are undeveloped and are therefore abandoned.   See Adamson v. Univ. of  


Alaska , 819 P.2d 886, 889 n.3 (Alaska 1991) ("[W]here a point is given only a cursory  


 statement  in  the  argument  portion  of  a  brief,  the  point  will  not  be  considered  on  



              19            We do not address Beth's argument that the superior court should not have  


excluded thequestionnairesin their entiretysimply becausetheycontainedsomehearsay  


 statements, because the questionnaires themselves were inadmissible hearsay.  


              20           See Fed. R. Evid. 106 advisory committee's note to 1972 proposed rule  


(commenting  on  substantively  identical  federal  rule).                                                            The  Alaska  Supreme  Court  


Committee  on  Rules  of  Evidence  voted  to  adopt  the  federal  advisory  committee's  


commentary on Rule 106 as the commentary to Alaska Evidence Rule 106.  Alaska R.  


Evid. 106 cmt.; see also Marron v. Stromstad, 123 P.3d 992, 1004 (Alaska 2005);  



                                                                                      -9-                                                                              7263

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

Beth's argument that the questionnaires were admissible as "source material" for the                                                                                                                

custody investigator does not fit within the scenario Rule 106 was designed to prevent;                                                                                                  

Beth points to no misleading impression that stemmed fromconsidering only the                                                                                                            custody  

investigator's report.                              

                               Beth's "source material" argument strongly resembles an argument for                                                                                                 

disclosure under Alaska Evidence Rule 705.                                                               Custody investigators, as a type of expert,                                        

do not have to rely only on admissible evidence in forming their opinion, and evidence                                                                                                 

                                                                                                                                                       21  But even if this Rule  

they rely on may be disclosed during the investigator's testimony.                                                                                                                               

could have been the evidentiary basis for Beth's proffer of the questionnaires, the record  


shows that Beth offered each witness's questionnaire while that witness was on the stand  


to bolster that witness's testimony, rather than to explain the custody investigator's  


testimony.                      The  superior  court  did  not  abuse  its  discretion  by  excluding  the  


questionnaires on a hearsay basis.  


                               Third, Beth argues that the retired judge's testimony was no different from  


the other witnesses and that a retired judge serving as a fact witness should not be  


subjected to heightened credibility standards.   But the issue here is not heightened  


credibility; the superior court simply weighed the judge's testimony as it would that of  


any  other  witness,  and  it  found  that  the  judge's  "eagerness  to  express  his  opinion  


                20              (...continued)  


("Alaska's rules of evidence are similar to, and were modeled after the Federal Rules of  


Evidence."); Estate of Arrowwood ex rel. Loeb v. State, 894 P.2d 642, 647 & n.24  


(Alaska 1995) (relying on advisory committee's note to federal rules to interpret Alaska  


Rules of Evidence).  

                21                  See  Alaska  R.  Evid.  703  ("Facts  or  data  need  not  be  admissible  in  


evidence, but must be of a type reasonably relied upon by experts in the particular field  


in forming opinions or inferences upon the subject."); Alaska R. Evid. 705(a) ("The  


expert may in any event disclose on direct examination, or be required to disclose on  


cross-examination, the underlying facts or data . . . .").  


                                                                                                 -10-                                                                                           7263

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

undercut[] the neutrality of his reported observations." "[T]he trial court, not this court,                                                            


judges the credibility of witnesses."                                                                                                                        

                                                                           The superior court reasonably discounted the  


judge's testimony based on his unnecessary attempts to bolster his opinion and the  


 court's firsthand view of all the evidence.  


                         We therefore find no reversible error in the superior court's consideration  


 of the evidence.  


             B.	         Controlling Factual Findings Are Not Clearly Erroneous.  


                         Beth next argues that the superior court made five clearly erroneous factual  


 findings to support its decision.  Because controlling factual findings are supported by  


the record, we see no reversible error.  


                          1.	         The superior court's finding that it asked Beth if Andre had  


                                      behaved inappropriately is clearly erroneous but immaterial.  


                         Beth first argues that the superior court clearly erred when it noted: "At the  


hearing  the  [c]ourt  asked  [Beth]  if  she  suspected  [Andre]  had  done  something  


unacceptable.  She said no."  Beth argues that, because this interaction never occurred,  


we must be wary of all of the superior court's findings. Beth also intimates that she may  


have said something different if actually asked this question.  


                         Beth appears to be correct that the superior court clearly erred by making  


this finding. We have not been able to find, nor has Andre pointed us toward, any record  


 evidence that this interaction occurred.  The superior court likely was referring to the  


 following question between Beth and her counsel:  


                         Q:	          In regards to the OCS incident, you heard testimony  


                                      today  that  indicated  there  was  some  sort  of  an  


                                      accusation             or      implication              that       Andre           was        the  

             22          Sheffield v. Sheffield                , 265 P.3d 332, 335 (Alaska 2011) (quoting                                       Josephine  

B.  v. State, Dep't of Health &Soc. Servs., Office of Children's Servs.                                                        , 174 P.3d 217, 222          

 (Alaska 2007)).   

                                                                              -11-	                                                                      7263

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

                                     perpetrator - and I hate - that word just doesn't                                      

                                      seem right - but was the perpetrator.                                    Did you ever   

                                      accuse Andre of doing this?                 

                         A:	         No.  

                         Q:	          And was it your intent to convey that he had done                                         


                         A:	         No.   

                         Evenifclear error,                 this was not a"controlling                      factualfinding"and                   therefore  

                                     23   Beth's counsel's question was substantially similar to the court's  

not reversible error.                                                                                                                                 

memory, and Beth has not argued here that Andre committed an act of domestic violence  


or child abuse that requires a different weighing of the best interests factors.24                                                                         The  


erroneous finding is immaterial.  


                         2.	          The finding that Andre could spend only four weeks a year with  


                                      their daughter if he did not receive primary physical custody is  


                                      not clearly erroneous.  


                         Beth next argues that the superior court clearly erred by finding that Andre  


could remain involved in their daughter's life for only four weeks per year if Beth had  


primary physical custody. Beth argues that the hearing testimony and our judicial notice  


of the Homer school calendar would show that Andre could be meaningfully involved  


and have at least six weeks of guaranteed visitation each summer, plus an additional two  


weeks during school year breaks.  


             23	         See supra          note 10 and accompanying text.                       



                         See AS 25.24.150(c)(6) (directing court to disregard parent's willingness  


to facilitate close relationship between other parent and child if "one parent shows that  


theother parent hassexuallyassaulted or engaged in domestic violence against theparent  


or a child, and that a continuing relationship with the other parent will endanger the  


health or safety of either the parent or the child"); AS 25.24.150(c)(7) (directing court  


to consider "any evidence of domestic violence, child abuse, or child neglect").  

                                                                             -12-	                                                                       7263

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

                                                                               The superior court did not clearly err.                                                                                                                                                                                                 Beth argues on appeal that the                                                                                                                                            

 Homer school calendar shows the first day of school is the day after Labor Day, which                                                                                                                                                                                                                                                                                                                                                                                           

 means Andre could have six weeks of physical custody each summer if she has primary                                                                                                                                                                                                                                                                                                                                                                                   

  custody.   But Beth never presented this calendar to the superior court, and, when the                                                                                                                                                                                                                                                                                                                                                                                                          

  court asked when their daughter would see Andre, Beth expressly agreed with the court                                                                                                                                                                                                                                                                                                                                                                                                

 that it would be two to four weeks.                                                                                                                                                                                In this posture, the propriety of this court taking                                                                                                                                                                                                         

judicial notice of the Homer school calendar for the first time on appeal is questionable                                                                                                                                                                                                                                                                                                                                                  

  at best.   

                                                                               First, taking judicial notice of a fact not presented below presents serious                                                                                                                                                                                                                                                                                                                

  fairness concerns to the opposing party.                                                                                                                                                                                              The case was litigated on the joint assumption                                                                                                                                                            

 that Andre would have limited time during the summer.                                                                                                                                                                                                                                                                               Second, taking judicial notice                                                                                                               

  of a fact not presented below presents serious judicial economy concerns.                                                                                                                                                                                                                                                                                                                                                               Even if Beth                                    

  did not actually do so in this case, she could have strategically withheld this information                                                                                                                                                                                                                                                                                                                                                    

 to bolster her appeal to require a remand, delaying finality and expending more court                                                                                                                                                                                                                                                                                                                                                                                                

 resources.     Third,   taking   judicial  notice   of   a school                                                                                                                                                                                                                                                           calendar   is   unwieldy.     School  

  calendars may be generally stable, but there is no guarantee that school will also start in                                                                                                                                                                                                                                                                                                                                                                                                            

  September next year, or the year after that, or any of the following years that their                                                                                                                                                                                                                                                                                                                                                                      

  daughter will be school age.                                                                                                                                        Finding clear error based solely on this year's calendar is                                                                                                                                                                                                                                                                          

  in the nature of speculation.                                                            

                                                                                                                                                                                                                                                                                                                                                                                25   Without such notice,  

                                                                               We thus decline to take judicial notice in this case.                                                                                                                                                                                                                                                                                                                                          

 the evidence before the superior court (and Beth and her counsel's own representations)  


                                        25                                    See   Dault   v.   Shaw,   322   P.3d   84,   97   n.5   (Alaska   2013)   (Winfree,   J.,  

  dissenting) ("[W]hether an appellate court will for the first time take judicial notice of                                                                                                                                                                                                                                                                                                                      

  a judicially notable fact rests largely in its own discretion." (quoting                                                                                                                                                                                                                                                                                                                                             Mills v. Denver                                   

  Tramway Corp.                                                                               , 155 F.2d 808, 812 (10th Cir. 1946))).                                                                                                                                        

                                                                                                                                                                                                                                                -13-                                                                                                                                                                                                                                      7263

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

 supports its finding of four weeks' physical custody. We are not left "with a definite and                                                                                                 

 firm conviction that a mistake has been made."                                                            26  


                               3.	            The finding that the daughter should have as close to equal time  


                                              with each parent as possible is not clearly erroneous.  


                               Beth next challenges the superior court's finding that the daughter should  


have as close to equal time with each parent as their schedules permit.  Beth argues that  


 the finding is not supported by the record and is therefore "a statement of judicial  


preference and . . . a non-statutory legal standard."  


                               Although Beth is correct that a judicial preference to equalize parenting  



 time  without  regard  to  the  daughter's  best  interests  would  be  error,                                                                                           we  are  not  


persuaded that the superior court's finding was a statement of judicial preference rather  


than a true fact finding of what was important to the daughter based on the record.  The  


 court expressly noted that "it is important that [the daughter] have as close to equal time"  


with  her  parents  as  possible.                                          This  reference  to  importance  to  the  daughter  was  


 immediately followed by the statement that "[b]oth have much to offer" her.  And the  


record is replete with evidence that Beth and Andre were both supportive parents from  


whom their daughter benefitted: Beth primarily cared for their daughter for the first two  

                26             See   Millette   v.   Millette,   177   P.3d   258,   261   (Alaska   2008)   (quoting  

Dingeman v. Dingeman                                    , 865 P.2d 94, 96 (Alaska 1993)).                                                 Even if we were to take                   

judicial   notice,   Beth   has   not   presented  a   convincing   argument   that   this   was   a  

 "controlling" fact finding.                                  See supra               note 10.             The superior court reasoned that "it is                                              

 important that [their daughter] have as close to equal time with each parent as their                                                                                                   

 schedules permit" and that being in Andre's care for only four weeks a year "would be                                                                                                         

harmful to her." The difference between four weeks and eight weeks, or a 92/8 split and                                                                                                     

 85/15 split, likely would have made no difference to the superior court's decision.                                                                                  

                27             See Vachon v. Pugliese, 931 P.2d 371, 375 (Alaska 1996) ("On review we  


must determine whether that discretion has been abused, . . . perhaps by elevating the  


 interests of one of the parties to the dispute above that of the child . . . ." (quoting Gratrix  


 v. Gratrix, 652 P.2d 76, 79-80 (Alaska 1982))).  


                                                                                              -14-	                                                                                      7263

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

years of her life; Andre shared in parenting duties when their daughter was a baby; Beth                                                                                                                 

kept   a   stable   routine   in   Uganik;   Andre   has   a   weekly   enrichment  schedule   with  

educational, physical, and cultural activities; Beth ensures their daughter has friends and                                                                                                                 

play   dates;  Andre   ensures   she   has   a   friend   group   her   age;   Beth   has   provided   her  

healthcare and daycare; and Andre has enrolled in parenting classes through the Sun'aq                                                                                                             

tribe of Kodiak.                         When the record contains such evidence, equal custody time certainly                                                                                  

                                                 28   We are not left with a "definite and firm conviction that a mistake  

is not inappropriate.                                                                                                                                                                           

has been made."29  


                                 4.	             The finding that the daughter's distress lessened after switching  


                                                 to a month-on, month-off schedule is not clearly erroneous.  


                                 Beth  next  challenges  the  superior  court's  finding  that  the  daughter's  


emotional distress grew "less severe after the alternate month schedule began."  Beth  


argues that the superior court clearly erred because she and her mother testified the  


daughter's distress was growing worse and there is no evidence to the contrary.  


                                 Although the superior court may have clearly erred if Beth's assertions  


about the record were necessarily true, they are not.  The custody investigator testified  


that "it sounds like she's adapted to this alternating month schedule."  And Beth herself  



                                 Q:	             When the month-on/month-off visits started, did you  


                                                 notice a difference . . . compared to the week-on/week- 


                                                 off visits?  


                28               SeeFaulkner                      v. Goldfuss, 46P.3d 993, 999 (Alaska2002) ("Thelegislature                                                                

has stated that 'it is generally desirable to assure a minor child frequent and continuing                                                                                                

contact with both parents after the parents have separated . . . .' " (quoting ch. 88,  1(a),                                                                                                          

SLA 1982)).   

                29               See Millette, 177 P.3d at 261 (quoting Dingeman, 865 P.2d at 96).  


                                                                                                     -15-	                                                                                              7263

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

                                                A:	                      Compared to the week-on and week-off visits, she still                                                                                                                             

                                                                         continues to have potty accidents for, like, the week                                                                                                                       

                                                                         after she comes.   I think the difference is that she has                                                                                   

                                                                         enough time to actually get settled in a household.                                                                                                                                We  

                                                                        have - the first week she gets there is usually -                                                                                                                                      

                                                                         again,   it's   -   there's   potty   accidents.     She's   got  

                                                                         massive anxieties about, you know, me leaving, don't                                                                                                                         

                                                                         go out of my sight.                                                    

                                                                         Usually about the second week she finally settles down                                                                                                                       

                                                                         a little bit.                              The potty accidents stop.                                                                             Her anxiety   

                                                                         levels seem to drop a little bit.                                                                                I can safely go to the                                              

                                                                         bathroom   or   carry   a   grocery   bag   in   from   the   car  

                                                                         without her completely freaking out.                                                                                                  

                                                                         That    usually    -   she   seems   to   settle   in   and   be  

                                                                         comfortable for about two weeks,                                                                                        until she knows that                                       

                                                                         she's getting ready to leave again. (Emphases added.)                                                                                                                

Beth's own testimony thus supports the superior court's finding that the disruptions as                                                                                                                                                                                                                           

a whole were "less severe," even if the transition periods themselves remained difficult.                                                                                                                                                                                                                                  

We are not left with a "definite and firm conviction that a mistake has been made."                                                                                                                                                                                                                          30  

                                                 5.	                     The finding that Beth is resistant to letting Andre play an equal  


                                                                         role in the daughter's life is not clearly erroneous.  


                                                Beth finally argues that the superior court clearly erred by finding that she  


is "resistant to having [Andre] play an equal role in [the daughter]'s life, despite her  


articulations to the contrary."  Beth argues that the record cannot support this finding  


unless we accept the superior court's reasoning, which uses Beth's petition for primary  


                        30                      See id.                     (quoting   Dingeman, 865 P.2d at 96).                                                                                                           We recognize that Beth                                                     

testified   that   the   transitions   themselves   remained   difficult,   and   we   understand   her  

concerns.   But we do not read the final custody order as finding that the difficulties had                                                                                                                                                                                                                 

disappeared, only lessened. To the extent Beth is challenging the superior court's failure                                                                                                                                                                                                        

to   award   her   primary   physical   custody   because   the   transitions   themselves   remain  

difficult, we address that issue                                                                               infra  at p. 19.                       

                                                                                                                                                      -16-	                                                                                                                                             7263

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

physical custody as some evidence that she does not want Andre in their daughter's life.                                                                                                                 

Beth argues that using her desire for primary physical custody is wholly inappropriate,                                                                                

"erroneous being something of an understatement."                                                                        

                               "[T]he trial court, not this court, judges the credibility of witnesses and                                                                                    

                                                                     31     And there is "conflicting evidence" that supports the  

weighs conflicting evidence."                                                                                                                                                                   

superior court's finding, including Andre's testimony that Beth will not faciliate co- 


parenting with him and is rude and cold at exchanges, Beth's testimony that she had not  


considered when their daughter would see Andre under her custody plan, and Beth's  


testimony that she had not been courteous to Andre's family at exchanges.  Once more,  


we are not left with a "definite and firm conviction that a mistake has been made."32  


                               Beth's argument that the superior court erred by referencing her custody  


petition as evidence presents a closer question.  When parents live in separate locations,  


a parent's desire to have primary physical custody should not be weighed against that  


parent absent additional facts indicating unwillingness to facilitate the other parent's  


relationship.  But it is not so clear that the superior court was referring to the bare fact  


that Beth filed her custody petition, instead of the practical effect of her legal requests  


on  her  daughter.                           And,  as  we  have  noted,  here  there  was  plentiful  other  evidence  


supporting the superior court's finding, and the order makes clear that the court would  


order a 50/50 split if either parent moved close enough to the other to make shared  


custody feasible.  Because there is other evidence in the record to support the superior  


court's finding, that finding is not clearly erroneous.  


               31              Sheffield v. Sheffield                        , 265 P.3d 332, 335 (Alaska 2011) (quoting                                                        Josephine  

B.  v. State, Dep't of Health &Soc. Servs., Office of Children's Servs.                                                                                    , 174 P.3d 217, 222                 

(Alaska 2007)).   

               32             Millette, 177 P.3d at 261 (quoting Dingeman, 865 P.2d at 96).  


                                                                                               -17-                                                                                        7263

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

          C.	       The Superior Court Did Not Abuse Its Discretion By Awarding Andre  


                    Primary Physical Custody.  


                    Beth argues that the superior court abused its discretion in four ways:  


equalizing parenting time at the expense of the daughter's best interests; attaching not  


enough weight to Beth's ability to meet the daughter's needs and too much weight to the  


daughter's and Andre's love and affection for each other; impermissibly considering  


Beth's  corporal  punishment  practices  without  finding  harm;  and  failing  to  give  


symmetric consideration to the daughter's detriment from living with Andre compared  


to living with Beth.  We perceive no abuse of discretion in the final custody decision.  


                    1.	       The  superior  court  did  not  equalize  parenting  time  at  the  


                              expense of the daughter's best interests.  


                    Beth's first argument is that the superior court abused its discretion by  


"prioritizing  the  importance  of  equality  of  parental  access  to  [the  daughter]  at  the  


expense of her best interests."  Beth argues that allowing the court's decision to stand  


paves the way for any parent who fishes during summers to automatically obtain primary  


physical custody.  


                    We reject Beth's argument because it depends on our concluding that the  


superior court clearly erred by finding that equal time with both parents is important to  


their daughter.  For the reasons discussed above, there was no clear error.  As a whole  


the court's order reflects its finding that the parents should have equal physical custody  


based on the best interests factors.   In other words, Andre did not receive primary  


physical custody  automatically  because he fishes during  the summers; he received  


primary physical custody because awarding one parent roughly 90% and the other only  


10% custody time would be harmful, and this was the only workable option.  Given the  


court's findings of the importance of equal time and the harmand benefit to the daughter,  


there was no abuse of discretion.  


                                                              -18-	                                                        7263

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

                                 2.	              The superior court did not misweigh the daughter's needfor                                                                                                   her  

                                                  mother and father.               

                                 Beth   next   argues   that   the   daughter's   distress   shows  that  her   need   for  

stability, continuity, and emotional care will all be better served by Beth.  Beth argues                                                       

that the superior court created a "false equivalence" between the daughter's happiness   

while in Andre's care and her distress while in Beth's.                                                                                   

                                 Beth's argument overstates our role on review.                                                                               "Custody disputes are                             

among the most difficult matters which confront a trial judge.  As a consequence, [we                                       


have] often noted that trial courts enjoy wide discretion in resolving custody disputes."                                                                                                                                  


When we do reverse a superior court's decision for misweighing the custody factors, we  


do so because the weight the superior court accorded a factor is not supported by the  



record.                  This case does not present such a custody decision.  


                                 First, as to Beth's argument that the superior court did not give enough  

weight to the daughter's emotional and social needs, the court's decision shows that it  


did consider the daughter's needs.  The court noted that it was "concerned" by Beth's  


testimony about the daughter's reluctance to be with Andre but that "equally powerful  


and convincing testimony . . . caused the [c]ourt to question its initial impressions." The  


court also found that the daughter's emotional difficulties were caused by her "different  


experiences in the environments each parent offered," that the constant transitions were  


a likely source of the difficulties, and that Andre was able to meet the daughter's special  


needs caused by the difficulty of transitions, along with all of her other needs, once she  

                 33               Craig v. McBride                            , 639 P.2d 303, 304 (Alaska 1982).                                     

                 34              See Rego v. Rego                           , 259 P.3d 447, 459-60 (Alaska 2011) (affirming custody                                                                  

order because evidence was not out of step with weight given to factors);                                                                                                               West v. West                   ,  

21 P.3d 838, 843 (Alaska 2001) (reversing custody order because weight was based on  


assumptions and not evidence).                       

                                                                                                       -19-	                                                                                                7263

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


was in his care.  As we explained above, the court's finding that the daughter's distress  


lessened was not clearly erroneous because the evidence shows she tended to improve  


once she was in one parent's care for a longer period. The court properly considered this  


in its order and concluded that the daughter's needs could be met if Andre had primary  


physical custody.  Given this record, the court did not underweigh Beth's argument that  


she was better able to meet the daughter's needs.  


                     Second, as to Beth's argument that the superior court gave too much weight  


to Andre's and their daughter's love and affection for each other, the evidence is not  


dramatically out of step with the weight the court gave to testimony about the daughter's  


life with Andre. Beth argues that "[t]estimony that [their daughter] was genuinely happy  


when [in Andre's care] simply does not address the plethora of evidence that [she] was  


emotionally distraught on multiple occasions when she was told she would have to leave  


her mother." But the court's analysis on this point was about whether Andre could meet  


the  daughter's  needs,  and  the  court  was  not  unreasonable  in  concluding  that  the  


daughter's happiness in Andre's care rebutted testimony that she was not. Given the lack  


of a dramatic disparity between the evidence and the weight given it by the court, we are  


not persuaded that the daughter's distress at leaving Beth required Beth to have primary  


physical custody.  


                    3.	        The  superior  court's  views  on  corporal  punishment  did  not  


                               affect its final custody order.  


                    Beth  argues  that  the  superior  court's  repeated  comments  expressing  


disapproval of her disciplinary practices show a "deeply seated aversion" to corporal  


punishment that "casts an unacceptable shadow upon the validity of [its] ruling."  Beth  


argues that the court's personal views on corporal punishment are irrelevant unless the  


court found that her discipline was "excessive or harmful."  

                                                               -20-	                                                        7263

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

                          Beth is correct that courts may not consider "impermissible factors" in the                                                               

best interests analysis or "decide the custody issue on the basis of cultural assumptions                                                         

                                                                                  35     Though courts have broad discretion to  

which  are not borne out by the record."                                                                                                                             

consider  any  "factors  that  the  court  considers  pertinent"  when  making  custody  


determinations,36   this discretion is not unlimited.   Evidence of a parent's "lifestyle,  


habits, or character" is generally irrelevant.37                                            For instance, we have vacated custody  


determinations that considered the desirability of a Native child assimilating to white  


culture,38   a parent's having children out of wedlock,39  a parent's sexual conduct,40  a  


parent's sexual orientation,41 aparent's mentalhealth,42 andthe"tender years"doctrine.43  


                          The general rule for these impermissible factors is strict:  "To avoid even  


the suggestion that a custody award stems from a life style conflict between a trial judge  



and a parent, . . . trial courts must scrupulously avoid reference to such factors . . . ."                                                                                


              35          Carle  v.  Carle,  503  P.2d   1050,   1055  (Alaska   1972).  

              36          See  AS  25.24.150(c)(9).  

              37          Britt  v.  Britt,  567  P.2d  308,  311  (Alaska   1977).  

              38          See  Carle,  503  P.2d  at   1054-55.  

              39          See  Craig  v.  McBride,  639  P.2d  303,  305-06  (Alaska   1982).  

              40          See  Bonjour  v.  Bonjour,  566  P.2d  667,  669  (Alaska   1977).  

              41          See  S.N.E.  v.  R.L.B.,  699  P.2d  875,  879  (Alaska   1985).  

              42          See  Morel  v.  Morel,  647  P.2d  605,  608  (Alaska   1982).  

              43          See  Johnson  v.  Johnson,  564  P.2d  71,  74  (Alaska  1977).   The  tender  years  

doctrine  presumes  that  awarding  maternal  custody  of  a  young  child  is  in  the  child's  best  

interests.   Id.  

              44          Craig, 639 P.2d at 306.  


                                                                                 -21-                                                                           7263

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

But   certain   lifestyle   evidence,   though   generally   impermissible,   may   properly   be  


considered if grounded in the child's best interests.                                                                      

                                                                                   For instance, courts may properly  


consider the sexual conduct of a parent when there is "evidence of an adverse effect to  

                                                46  Thus, the rule is that courts may consider otherwise  



the parent-child relationship." 

impermissible factors when there is "evidence of an adverse effect"47  on the parent-child  


relationship  as  opposed  to  "cultural  assumptions  which  are  not  borne  out  by  the  



                     There is no evidence in the record that Beth's switching adversely affected  


the parent-child relationship, so our analysis is confined to whether differing views on  


corporal punishment present "a life style conflict between a trial judge and a parent."49  


If they do, the superior court's comments would have been improper.  But if not, the  


comments could reflect a legitimate consideration of the daughter's best interests under  


the catch-all provision of AS 25.24.150(c).50  


                     Weconcludethat differing views on corporal punishmentpresent alifestyle  


conflict between trial judge and parent.  Our decision on this issue has ultimately been  


made for us; the legislature crafted the best interests standard, and the legislature has  


          45         Id.  at  305.  

          46         Id.  at  306.  

          47         See  id.  

          48         See  Carle  v.  Carle,  503  P.2d   1050,   1055  (Alaska   1972).  

          49         See  Craig,  639  P.2d  at  306.  

           50        See  AS  25.24.150(c)(9)  ("[T]he  court  shall  consider  .  .  .  other  factors  that  

the  court  considers  pertinent.").  

                                                                 -22-                                                           7263

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


determined that corporal punishment can be in a child's best interests.                                                               It was therefore     

inappropriate   for   the   superior   court   to   comment   on   Beth's   practice   in   a   way   that  

suggested disapproval without first finding harm to the child.                                                      52  


                         In this case, however, the potential error did not affect the superior court's  


disposition.  The court did not order Beth to stop using corporal punishment, and it did  


not tie corporal punishment into its best interests analysis. The court explicitly noted that  


it would order a 50/50 custody split if the parents lived in the same locality, despite its  


comments about corporal punishment. Given these facts, it is clear the court did not rely  



on Beth's corporal punishment to reach its child custody decision. 

                         4.	          The         court           superior              did        not        violate            the        "symmetric  


                                      consideration" rule or penalize Beth for moving to Homer.  


                         We  previously  have  ruled  that  superior  courts  must  consider  the  best  


interests of the child when a parent intends to move by considering consequences to the  


child with both the moving parent and non-moving parent.54  


                                                                                                                   Beth argues that the court  


violated  this  "symmetric  consideration"  rule  by  considering  only  their  daughter's  

             51          See  AS 11.81.430(a)(1) ("The use of force . . . is justified . . . [w]hen and                                                      

to the extent reasonably necessary and appropriate to promote the welfare of the child   

. . . , a parent . . . use[s] reasonable and appropriate nondeadly force on that child.").                                                      

             52          We remind trial judges that comments indicating extrajudicial preferences  


must be scrupulously avoided, to avoid even the appearance of impropriety.  Especially  


in family law matters, a trial judge's personal preferences must be kept separate from the  


legal considerations.                       Craig  v.  McBride, 639  P.2d  303,  306  (Alaska 1982)  ("[W]e  


reiterate that trial courts must scrupulously avoid reference to [impermissible] factors  


absent evidence of an adverse effect to the parent-child relationship.").  


             53          Cf. S.N.E. v. R.L.B., 699 P.2d 875, 879 (Alaska 1985) ("Since the lower  


court's findings were impermissibly tainted by reliance in part on the fact that Mother  


is a lesbian, we remand this case to the superior court . . . ." (emphasis added)).  


             54          Moeller-Prokosch v. Prokosch, 99 P.3d 531, 535-36 (Alaska 2004).  


                                                                              -23-	                                                                       7263

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

detriment from living with Beth, not her detriment from living with Andre.                                                                                                    Beth also   

argues that the court impermissibly "punished" her for moving to Homer by attempting                                                                                         

to coerce her to move to Kodiak.                                             

                              Beth's symmetric consideration argument misunderstands the purpose of                                                                                             

the rule.            The symmetric consideration test ensures that courts weigh costs and benefits                                                                                 

                                                                                                                                                                                      55    But  

to a child when one parent asks for a custody order reflecting their plan to move.                                                                                                           

it does not apply when the parents already live in separate locations at the time of the  


evidentiary hearing and the court hears evidence about the child's environment in both  


locations.56   Here Beth had already moved to Homer and the court was able to weigh the  


evidence of stability in both Homer and Kodiak.  


                              Beth's punishment argument is also faulty.  Beth argues that the superior  


court erred when it included the following footnote in its custody order: "If both parties  


lived in the same town, say Kodiak, then the [c]ourt would craft a shared physical  


custody schedule during the school year."  But this footnote does not show any desire  


by the court to punish Beth; it is simply another instance of the court's oft-repeated  


statement  that  a  50/50  custody  split  was  in  their  daughter's  best  interests  but  was  


impossible because of the parent's living situations.57  And the court aimed this criticism  


equally at both Beth and Andre:  


                               [T]here's another factor, which is if the two of you choose to  


                              live in separate locations, there's a tremendous impact on this  


               55              Van  Sickle  v.  McGraw,   134  P.3d  338,  342  (Alaska  2006).  

               56             Id.  

               57              Cf.  Rego  v.  Rego,  259  P.3d  447,  455  (Alaska  2011)  ("We  [have]  scrutinized  

the   record   before   us   in   this   case.    We   conclude   that   [Appellant]'s   position   [that   the  

superior court  was  impermissibly  punishing  Appellant]  is  not  supported  by  the  record  

and  would  require  us  to  apply  undue  skepticism  to  the  superior  court's  decision.").  

                                                                                              -24-                                                                                       7263

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


                   child.  So someone has to make a decision about either you  


                   returning to Kodiak or you moving to Homer.  I mean, that's  


                   what  responsible  parents  do.                   They  sacrifice  for  their  




We therefore perceive no abuse of discretion in the final custody order.  

V.        CONCLUSION  


                   The superior court's custody order is AFFIRMED.  

                                                            -25-                                                      7263

Case Law
Statutes, Regs & Rules

IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights