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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Lewis G. v. Cassie Y. (9/28/2018) sp-7304

Lewis G. v. Cassie Y. (9/28/2018) sp-7304

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

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                       THE SUPREME COURT OF THE STATE OF ALASKA                                         

LEWIS  G.,                                                              )  

                                                                        )    Supreme  Court  No.  S-16761  

                                 Appellant,                             )  


                                                                        )    Superior Court No. 3PA-16-01663 CI  

           v.                                                           )  


                                                                        )    O P I N I O N  


CASSIE Y.,                                                              )  


                                                                        )    No. 7304 - September 28, 2018  

                                 Appellee.                              )  




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


                      Judicial District, Palmer, Vanessa White, Judge.  


                      Appearances:               Lewis  G.,  pro  se,  San  Antonio,  Texas,  


                      Appellant.           Darryl  L.  Jones,  Jones  &  Associates,  LLC,  


                      Palmer, for Appellee.  


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


                      and Carney, Justices.  


                      BOLGER, Justice.  




                      A mother moved from Texas to Alaska, taking her two children with her.  


The father, still residing in Texas, filed for divorce.  The parties executed a settlement  


agreement awarding joint legal custody of the children to the parents, primary physical  


custody to the mother, and custody during the summer and over the Christmas holiday  

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

to the father.                  Cooperation between the parents began to deteriorate, and the father                                                                             

moved to modify custody.                                     

                             The superior court concluded that there had been a substantial change of                                                                                     

circumstances and conducted a best interests analysis.                                                                      The court elected to keep the                               

custody agreement largely unchanged. However,                                                              it required the father's future visitation  

to   occur  in   Alaska   and   imposed   other   conditions   on   his   visitation   and   the   parties'  

communications. The father appeals, alleging several deficiencies in the court's analysis                                                                                    

and arguing that his due process rights were violated.  Finding no error, we affirm the                                                                                                 

superior court's order.                            

II.            FACTS AND PROCEEDINGS            

               A.            Facts  

                                                                                   1  have two children:  Rachel, born in December  

                             Lewis G. and Cassie Y.                                                                                                                     

2002, and Harold, born in March 2005.  In March 2015 Cassie moved from Texas to  


Alaska, taking the children with her. After relocating, Cassie sought a domestic violence  


protective order against Lewis, which the district court granted based on findings of both  


assault and sexual offense.  


                             Harold  struggled  with  suicidal  ideation  while  living  in  Texas,  and  he  


continued to do so following the move to Alaska. In May 2015 Cassie scheduled Harold  


for counseling. Shortly thereafter Harold attempted to hurt himself and was hospitalized  


at North Star Hospital. After being released Harold continued to receive counseling. He  


also began seeing a psychiatrist and taking prescribed psychotropic medications.  




                             We use pseudonyms throughout to protect the family's privacy.  

                                                                                            -2-                                                                                            7304  

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

                       In October 2015 a Texas court entered a Final Decree of Divorce that                                                     


included a child custody order.                                                                                                               

                                                       The custody order provided Cassie and Lewis joint legal  


custody of the children and Cassie primary physical custody.  It also stated that as long  


as the parents resided more than 100 miles apart, Lewis would have physical custody of  


the children during summer months and the period between Christmas and New Year's  




                       In   the   months   following   the   divorce,   Cassie   and   Lewis   initially  


communicated amicably.  Over time, however, Lewis began to text and email Cassie  


with increasing frequency, accusing her of preventing him from contacting the children  


and failing to respond to requests for information. In response, Cassie accused Lewis of  


harassing her and displaying stalking behavior.  Cassie eventually stopped responding  


to Lewis's texts and directed Lewis to communicate with her only by email.   Lewis  


continued to send her both texts and emails.  


                       In June 2016 Harold and Rachel went to stay with Lewis in Texas for the  


summer per the terms of the custody order.  Later that month Lewis filed a motion to  


modify custody in a Texas court.  He alleged that Cassie had exposed the children to a  


convicted sex offender and that Cassie was neglecting the children's academic and  


medical needs.  The Texas court sent an investigator to Alaska, who determined that a  


sex offender was living in a trailer on the same property as Cassie and the children.  


Although the investigator expressed concern, he noted that the man was scheduled to  


move out soon, and he advised the Texas court that he did not believe the children were  


in  danger.           Additionally,  prior  to  the  investigator's  trip  to  Alaska,  Lewis  told  the  


investigator that he sometimes uses methamphetamine.  



                       Cassie  and  Lewis  never  married  but  obtained  a  divorce  under  Texas  


common law.  

                                                                        -3-                                                                       7304  

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


                    Despite receiving  ongoing treatment,  Harold's mental health struggles  


persisted.   During 2016 he continued to battle impulses to hurt himself.   In October  


Harold ingested some of his mother's  medication and was admitted to the hospital for  


treatment.        And  in January 2017 Harold was diagnosed with bipolar disorder with  


psychosis  and  ADHD.                  In  March  2017  he  was  again  hospitalized  at  North  Star.  


          B.        Proceedings  


                    In October 2016 the Texas court concluded that it lacked jurisdiction over  


the motion to modify custody because the children resided in Alaska.  A few days later  


Lewis filed  a motion  in  Alaska  superior  court to  change custody.                                     He argued that  


Harold's drug overdose earlier that month indicated that the children were at risk of  


harm; that the children's grades had declined; that a convicted child rapist had lived on  


the same property as Cassie and the children; that Harold's mental health issues were a  


product of his living situation; that the children were living in a crowded home with  


people often moving in and out; and that Cassie had attempted to sabotage Lewis's  


relationship with the children.  Lewis also filed a motion seeking temporary custody of  


Harold and Rachel on similar grounds.   The superior court referred the dispute to a  


family court master.  


                    A hearing on the temporary custody motion was held in January 2017. The  


master heard testimony from Cassie, Lewis, Harold's clinicians, and one of the coaches  


of Rachel's sports team. Lewis argued during the hearing that Cassie had not adequately  


responded to interrogatories and a request for documents; the court later ordered Cassie  


to  either  provide  answers  to  Lewis's  interrogatories  and  produce  the  requested  


documents or state objections in writing. The master recommended that Lewis's motion  


for temporary custody be denied, and the superior court adopted this recommendation.  


                    A hearing on the motion to change custody was held in March 2017. At the  


outset Lewis stated that Cassie had not provided adequate answers to his interrogatories.  

                                                               -4-                                                         7304

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

He argued that he had not had time to file an objection because Cassie had submitted her                                                                                                                                                                                                                                                                                                          

responses less than two weeks before the hearing, and he asked the master to delay the                                                                                                                                                                                                                                                                                                            

hearing by 30 days.  Cassie objected to a delay, noting that she had replied to Lewis's                                                                                                                                                                                                                                     

interrogatories by the deadline in the court's order.                                                                                                                                                                                             The master declined to delay the                                                                                                               

hearing. She assured Lewis that he would have an opportunity during the hearing to ask                                                                                                                                                                                                                                                                                                           

Cassie any questions she had not answered during discovery.                                                                                                                                                                                

                                                              Lewis, Cassie,oneofCassie's                                                                                                              friends,oneofRachel's sportsteamcoaches,                                                                                                                           

the investigator appointed by the Texas court, and a member of Cassie's church testified                                                                                                                                                                                                                                                                                    

at the hearing. Afterwards the master asked Lewis if he felt his case had been prejudiced                                                                                                                                                                                                                                                                       

by Cassie's failure to provide any requested documents or respond to his interrogatories.                                                                                                                                                                                                                                                                                                                          

Lewis stated that he would like Cassie to answer some questions that had not been                                                                                                                                                                                                                                                                                                        

adequately addressed during discovery. The master allowed Lewis to ask Cassie several                                                                                                                                                                                                                                                                                           

questions.     Lewis   answered   "yes"   when  the   master   asked   if   the   court   had   "fully  

addressed [his] concerns about the discovery."                                                                                                                                                                            

                                                              The master made findings on the record a few weeks later.                                                                                                                                                                                                                                        Based on   

Harold's medical issues, repeated hospitalizations, and accidental overdose, the master                                                                                                                                                                                                                                                                                           

concluded that a substantial change in circumstances had occurred, which could warrant                                                                                                                                                                                                                                                                                       

                                                                                                                                                                                       3  She next considered whether modification of  

modification of the custody agreement.                                                                                                                                                                                                                                                                                                                                                                 

the agreement would be in the children's best interests.4                                                                                                                                                                                                                                Citing Cassie's efforts to  


address Harold's mental health needs while in Alaska - and concluding that Lewis had  


not "fully recognized or accepted the extent of [Harold's] mental health issues" - the  


                               3                              See  AS 25.20.110(a) ("An award of custody of a child or visitation with the                                                                                                                                                                                                                                                         

child may be modified if the court determines that a change in circumstances requires the                                                                                                                                                                                                                                                                                                          

modification of the award and the modification is in the best interests of the child.").                                                                                                                                                                                                                                                                         

                               4                             Id. ; see AS 25.24.150(c) (listing factors a court should consider in its best  


interests determination).  


                                                                                                                                                                                                  -5-                                                                                                                                                                                     7304

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


master found that the first and second best interests factors weighed in Cassie's favor.                                                                                        



The master further found that the fifth factor weighed "heavily" in Cassie's favor.                                                                                    She  


based this finding on the fact that "all [Harold's] providers are here in Alaska," and she  


stated  that  given  Harold's  "fragile  condition,"  it  was  "pretty  crucial"  for  him  to  


experience "continuity" in his contact with his doctors and therapists.   And noting  


Lewis's admission during the hearing that he had used methamphetamine in the past, the  



master found that the eighth best interests factor also weighed in Cassie's favor. 

                           The master found that the sixth factor weighed "slightly" in Lewis's favor  


based on the finding that Cassie had unreasonably failed to keep Lewis informed of  


important information about the children's medical care.8  But the master acknowledged  


Cassie'scomplaints that Lewis'srepeated requestsfor informationcould beoverbearing.  



The master found that the evidence was neutral as to the other enumerated factors.    


              5            See  AS 25.24.150(c) ("In determining the best interests of the child the                                                                    

court shall consider (1) the physical, emotional, mental, religious, and social needs of the                                                                             

child; [and] (2) the capability and desire of each parent to meet these needs . . . .").                                                                       

              6            See AS 25.24.150(c)(5) (directing the court to consider in the best interests  


analysis "the length of time the child has lived in a stable, satisfactory environment and  


the desirability of maintaining continuity").  


              7            See AS 25.24.150(c)(8) (directing the court to consider in the best interests  


analysis "evidence that substance abuse by either parent . . . directly affects the emotional  


or physical well-being of the child").  


              8            See AS 25.24.150(c)(6) (directing the court to consider in the best interests  


analysis "the willingness and ability of each parent to facilitate and encourage a close and  


continuing relationship between the other parent and the child").  


              9            The  master  noted  the  concerns  about  the  sex  offender  living  on  the  


property, but declined to weigh this factor against Cassie because the master found that  


Cassie had "sufficient safeguards in place to assure the children's safety."  The master  



                                                                                    -6-                                                                             7304

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

Lastly, the master indicated that Harold's mental health issues, Rachel's participation in                                                                    

athletics, and recent improvements in the children's academic performance were other                                                                   

factors that she had taken into account when conducting her analysis.                                                            10  


                         Based on her findings, the master recommended that "custody be exactly  


as what the parties agreed to [in their custody agreement] except that [Lewis's] visitation  


needs to be in the State of Alaska." The master clarified that after custody was modified,  


Lewis could "come to Alaska and have the whole summer visitation that he would  


otherwise be able to exercise in Texas."  The master also recommended that Cassie be  


required to communicate with Lewis and to facilitate communication between him and  


the  children.              Lastly,  she  recommended  that  Lewis  be  required  to  follow  hospital  


recommendations for visitation and passes while exercising visitation, and that Rachel's  


"participation in her extracurricular activities . . . be maintained in the State of Alaska."  


                         The  master  issued  written  findings  of  fact  and  conclusions  of  law  


memorializing the findings on the record, which the superior court approved.  Lewis's  

            9            (...continued)  


also acknowledged that an Alaska court had previously found that Lewis had committed  


domestic violence.  See AS 25.24.150(c)(7) (directing the court to consider in the best  


interests analysis "any evidence  of domestic violence .  .  .  or  a history  of violence  


between the parents"); see also AS 25.24.150(g) ("There is a rebuttable presumption that  


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


child, or a domestic living partner may not be awarded sole legal custody, sole physical  


custody, joint legal custody, or joint physical custody of a child.").  However, because  


the parents' custody agreement granted Lewis partial custody, the master concluded that  


the issue of Lewis's domestic violence had been "waive[d]."  While Cassie challenges  


this conclusion in her briefing, she did not appeal from the court's ruling.  Accordingly,  


we decline to address this issue.  See Peterson v. Ek, 93 P.3d 458, 467 (Alaska 2004)  


("We have consistently held that failure to file a cross-appeal waives the right to contest  


rulings below.").  

             10          See AS 25.24.150(c)(9) (directing the court to consider in the best interests  


analysis "other factors that the court considers pertinent").  


                                                                              -7-                                                                      7304

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

motion for reconsideration was denied, and he filed an appeal.                                                                                                                          Lewis argues that the                                   

court erred in conducting its best interests analysis, that several portions of the court's  

order are unenforceable or invalid, and that the court violated his due process rights by                                                                                                                                                         

failing to follow the rules of civil procedure. He also argues that the requirement that the                                                                                                                                                     

children remain in Alaska during his periods of custody was unduly restrictive.                                                                                                                      

                                      After   Lewis   filed   his   appeal,   we   issued   a   remand   order   requiring  the  

superior court to make supplemental findings on Lewis's substance abuse.                                                                                                                                               On remand   

the   master  concluded   that   no   evidence   had   been   presented   to   show   that   Lewis's  

substance abuse had a direct impact on the children.                                                                                                  She thus concluded that the eighth                                               

                                                                                                                                                                                                                                      11      She  

best interests factor in AS 25.24.150(c) should not have weighed against Lewis.                                                                                                                                                              

nevertheless  concluded  in  light  of  the  other  evidence  in  the  record,  that  "[t]hese  


supplementalfindings should not alter thecourt's custody award." However, after Lewis  


objected to these supplemental findings, the superior court issued an order relaxing the  



requirement that Lewis exercise his summer visitation in Alaska.                                                                                                                                 


                                      With  respect  to  the  effect  of  the  court's  findings  concerning  Lewis's  


substance  abuse,  we  review  the  court's  order  as  amended.                                                                                                                        We  conclude  that  the  


supplemental  order  renders  Lewis's  objections  to  the  requirement  that  he  exercise  


visitation in Alaska moot; accordingly, we decline to address his arguments concerning  


                   11                 See   AS 25.24.150(c)(8) (directing the court to consider "evidence that                                                                                                                               

substance abuse by either parent or other members of the household                                                                                                                                 directly affects                            the  

emotional or physical well-being of the child" (emphasis added)).                                                                                                     

                   12                  The court's order stated that it "is not now requiring visits to occur in  


Alaska, but is only recommending that . . . to promote stability" and provided that Lewis  


"is entitled to insist his visitation occur in Texas."  


                                                                                                                         -8-                                                                                                               7304

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


that   aspect  of   the   original   order.                                        We   are   not   otherwise   reviewing   either   the  

supplemental decision or the several motions now pending since Lewis filed his appeal.                                                                                   

III.	         DISCUSSION  

              A.	            The Court Did Not Err In Making Its AS 25.24.150(c) Best Interests                                                                     


                             "Alaska   Statute   25.24.150(c)   requires   that   the   superior   court   base   its  

decision to modify a custody order on the best interests of the child.                                                                                  Alaska Statute   

25.24.150(c)    lists    the    factors    the    court    should    consider    in   its    best    interests  


                                      Lewis argues that the superior court failed to take relevant evidence  


into account when conducting this best interests analysis.  He further argues that some  


of  the  court's  best  interests  findings  were  not  supported  by  the  record.                                                                                Lastly  he  


contends that the court abused its discretion by considering Lewis's substance abuse in  


its best interests analysis.  

                                                                                                                                                                        15    "We  


                            A trial court has broad discretion in deciding child custody issues. 

give 'particular deference' to the  trial  court's factual findings when they are based  


primarily on oral testimony, because the trial court, not this court, performs the function  


of judging the credibility of witnesses and weighing conflicting evidence."16                                                                                          We will  


reverse a trial court's resolution of child custody issues only if the "court has abused its  


              13             Specifically wedeclineto                              address Lewis's contentionsthat therequirement                              

"would essentially end the relationship that [Lewis] and his children share" and that the                                                                                         

superior court concluded without any "input from medical providers" that visitation                                                                                 

outside of Alaska posed a "potential risk to [Harold]."                                                              

              14            Harris v. Governale, 311 P.3d 1052, 1055 (Alaska 2013).  


              15            Millette v. Millette, 177 P.3d 258, 261 (Alaska 2008).  


              16            Id.  (alteration  omitted)  (quoting  Ebertz  v.  Ebertz,  113 P.3d  643,  646  


(Alaska 2005)).  


                                                                                         -9-	                                                                                7304

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


discretion or the controlling factual findings are clearly erroneous."                                                                              "The superior   

court abuses its discretion if it considers improper factors in determining custody, fails                                                                               

to consider statutorily mandated factors, or assigns disproportionate weight to some                                                                                  

                                                              18   A court's factual findings are clearly erroneous when,  

factors while ignoring others."                                                                                                                                      

after reviewing the record, we are left "with a definite and firm conviction that a mistake  


has been made."19  


                            1.	          The superior court did not err by failing to consider relevant  



                           Lewis contends that the superior court failed to take relevant evidence into  


account when making its best interests findings.20  


                                                                                                    He challenges the court's findings that  



the first two AS 25.24.150(c) factors                                           weigh in Cassie's favor on the grounds that the  


court  "overlooked  or  ignored  many  things  [a]ffecting  the  physical,  mental  and/or  


emotional health of the children," including evidence that a sex offender had lived on the  


same property as the children, that the children had struggled at school, and that Cassie  

              17           Harris, 311 P.3d at 1055 (quoting                                       Iverson v. Griffith, 180 P.3d 943, 945                                 

(Alaska 2008)).   

              18	          Id. (quoting Iverson, 180 P.3d at 945).  


              19           Millette, 177 P.3d at 261 (quoting Dingeman v. Dingeman, 865 P.2d 94, 96  


(Alaska 1993)).  


              20           Lewis  suggests  that  the  court's  failure  to  consider  relevant  evidence  


constituted an abuse of discretion. However, he effectively contends that the court erred  


in finding that several of the AS 25.24.150(c) factors favored Cassie and that other  


factors were neutral or weighed "slightly" in Lewis's favor.  The court's best interests  


determinations are factual findings that we review for clear error.  See Harris, 311 P.3d  


at 1055-56.  


              21           See AS 25.24.150(c)(1), (2) ("In determining the best interests of the child  


the court shall consider (1) the physical, emotional, mental, religious, and social needs  


of the child; [and] (2) the capability and desire of each parent to meet these needs . . . .").  


                                                                                    -10-	                                                                              7304

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

was unwilling to communicate with Lewis.                                          He similarly contends that the court "failed                        

to consider or ignored several things that cannot be ignored" when analyzing the stability                                                          



and continuity factor,                      including evidence concerning the sex offender, the children's  


grades, Harold's accidental overdose, the frequency with which relatives moved in and  


out of the children's home, and "the conditions in [Lewis's] home." Lastly Lewis argues  


that the court failed to fully account for Cassie's unwillingness to communicate with  


Lewis when it concluded the sixth factor - the willingness of each parent to facilitate  


and encourage a relationship between the children and the other parent - weighed only  


"slightly" in Lewis's favor.  


                         We have rejected similar arguments in the past.  In Millette v. Millette, for  


instance, a father challenged the court's finding that a best interests factor weighed in  


favor of the mother on the grounds that the superior court "failed to consider" relevant  



evidence.              We found the father's argument unpersuasive.  While acknowledging that  


"a review of the evidence provides  some support  for  [the father's] assertions," we  


concluded the superior court's "findings favoring [the mother] are also supported by the  



                     Thus "[t]hough the record may have presented some evidence disfavoring  


both parties, the court's decision that this factor favored [the mother] was not clearly  



erroneous."                   And  in  Harris  v.  Governale  a  superior  court  discussed  the  close  


relationship between a father and the father's parents, but did not "separately evaluate"  

             22          See  AS  25.24.150(c)(5).  

             23           177  P.3d  at  264.  

             24          Id.  

             25          Id. ;   see   also   James   R.   v.   Kylie   R.,   320   P.3d   273,  282   (Alaska   2014)  

(acknowledging   the   existence   of   "some   countervailing   evidence,"   but   declining  

appellant's  "invitation  to  reweigh  the  conflicting  evidence  in  [the]  case").  

                                                                             -11-                                                                        7304

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


other   less   positive   relationships   affecting   the   stability   of   the   father's   household.                                 


Concluding that "it was not unreasonable for the court to highlight the importance of the  


paternal grandparents," we held that the superior court did not clearly err by concluding  




that the stability and continuity factor favored the father. 

                     In  light  of  this  precedent,  we  reject  Lewis's  challenges  to  the  court's  


findings on the first, second, fifth, and sixth best interests factors.   The court's best  


interests findings are supported by the record.  In support of its finding that the first and  


second factors favor Cassie, the court stated that Cassie had made extensive efforts to  


address Harold's mental health needs. It also stated that Lewis had not "fully recognized  


or accepted the extent of [Harold's] mental health issues."  


                     Evidence in the record supports both assertions.   During the hearings,  


Cassie and one of Harold's clinicians described Harold's treatment program.  The court  


also  heard  testimony  that,  after  Harold  was  hospitalized  in  June  2015,  Cassie  


immediately set up a recommended follow-up appointment with a psychiatrist.  And  


Cassie testified that Lewis had stopped Harold from seeing a counselor in the past, had  


taken  Harold  off  his  medication,  and  had  failed  to  ensure  that  Harold  would  have  


sufficient medication or access to a doctor during his period of custody.  


                     The court found that the fifth factor favored Cassie in light of Harold's  


"fragile condition," "profound mental health issues," and repeated hospitalizations. The  


testimony   of   Cassie,   as   well   as   Harold's   psychiatrist,   supports   the   court's  


characterization  of  Harold's  health;  the  record  also  contains  evidence  of  Harold's  


hospital stays and treatment program. Additionally Cassie testified that Harold "thrives"  


on a regular schedule and that significant changes in his life tend to exacerbate his mental  


          26         311  P.3d   1052,   1056  (Alaska  2013).  

          27         Id.  

                                                                -12-                                                               7304  

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

health issues. Lastly the court indicated that the sixth factor weighs in Lewis's favor due                                                                                

to Cassie's failure to keep Lewis informed of medical issues affecting the children.                                                                                               

Lewis's   testimony   and   records   of   the   parties'   text   messages   support   the   court's  


                                                                                   28  Lewis argues that the court's analysis of the  

                           Citing  Houston v. Wolpert                             ,                                                                                        

stability  and  continuity  factor  should  have  taken  into  account  "the  totality  of  the  


circumstances [thechildren]werelikely toencounter in their respectiveparents' homes."  


(Alteration in original.)  In Houston a father argued that the superior court "abused its  


discretion because it never 'offered any commentary or findings on [the father's] ability  


to maintain stable and satisfactory relations between himself and the child.' "29   We held  


that the court's conclusion that "the child had been in [the mother's] care for most of her  


life and that this stability would be disrupted if custody were awarded to [the father] . . .  


was not unreasonable."30  Like the father in Houston, Lewis argues the court should have  


focused to a greater extent on his ability to provide stability; as in Houston, the superior  


court instead focused on the potential negative effects of disrupting the stability the child  


benefitted from under the current custody arrangement.  Our holding in Houston does  


not support Lewis's claim that the court's best interests findings were erroneous.  


                           As in Harris, the superior court did not make findings expressly addressing  


all relevant evidence in the record. And as in Millette, there is evidence in the record that  


"provides some support for [Lewis's] assertions."31                                                            But because the findings Lewis  


              28           332 P.3d 1279, 1284 (Alaska 2014).                            

              29           Id. at 1283.  


              30           Id.  at 1284.   



                           Millette v. Millette, 177 P.3d 258, 264 (Alaska 2008).  

                                                                                    -13-                                                                               7304

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

challenges are supported by evidence in the record, we reject Lewis's contention that the                                                                                                                                                                                                                                

court's best interests analysis was erroneous.                                                                                   

                                                  2.                       The court's best interests findings are not otherwise erroneous.                                                                                                                                              

                                                  In addition to arguing that the court failed to consider relevant evidence                                                                                                                                                                      

when making its best interests findings, Lewis challenges three of the court's findings                                                                                                                                                                                 

on other grounds.                                                     First he contests the court's statement that Harold was in a "fragile                                                                                                                                                        

condition," arguing that the master was "not qualified to determine the condition of the                                                                                                                                                                                                                                

child." Second he argues that the court erred by finding that the sixth factor favored him                                                                                                                                                                                                                           

only slightly because in light of Cassie's noncompliance with past orders "the likelihood                                                                                                                                                                                                     

that she will just comply with [the court's order mandating communication] seems slim."                                                                                                                                                                                                                                                

Finally Lewis contests the court's finding that Cassie had safeguards in place to protect                                                                                                                                                                                                                 

the children from the sex offender, which the court cited in support of its finding that the                                                                                                                                                                                                                            

 seventh factor did not weigh in favor of either parent.                                                                                                                                                   

                                                  Our   review   of   the   record   does   not   leave   us   "with   a   definite   and   firm  


conviction" that the challenged best interests findings are erroneous.                                                                                                                                                                                                                                       

                                                                                                                                                                                                                                                                          As noted above  


there is extensive support in the record for the court's conclusion that Harold was in a  


"fragile" state at the time of the hearings, including testimony from his mother and  his  


psychiatrist, plus extensive medical records.  Lewis's contention that Cassie will not  


comply with the order mandating communication is simply a prediction about Cassie's  


future conduct, and is not relevant to whether the court erred in its analysis of the sixth  


factor.   In any event the parties' testimony and the records of their communications  


provide support for the court's conclusion that this factor weighed only slightly in  


Lewis's favor.   Lastly Cassie's testimony that she took steps to protect her children  

                         32                       Id.   at   261   (quoting   Dingeman   v.   Dingeman,  865   P.2d   94,   96   (Alaska  


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provides support for the court's finding that she had "sufficient safeguards in place to                                                                                                                                                                                                                                                                                                          

assure   the   children's   safety,"   and   Office   of   Children's   Services'   decision   to   place  

additional children in the home further supports the court's conclusion. Accordingly we                                                                                                                                                                                                                                                                                                       

cannot say that the court's best interests findings were clearly erroneous.                                                                                                                                                                                                                  

                                                             3.	                            The superior court did not abuse its discretion by considering                                                                                                                                                                                        

                                                                                            evidence of Lewis's substance abuse.                                                                                                               

                                                             Lewis argues that thesuperior                                                                                                          court abused itsdiscretionbyconcluding that                                                                                                                                            

the eighth best interests factor weighed against him.                                                                                                                                                                                                 He claims that while there was                                                                                                     

evidence   in   the   record   that   he   used   methamphetamine,   "[t]here   was   absolutely   no  

evidence presented that [his substance abuse] . . . had affected the children in any way,                                                                                                                                                                                                                                                                                            

which is what the statute requires."                                                                                                                               

                                                             After Lewis filed his appeal,themaster issuedsupplementalfindingsstating                                                                                                                                                                                                                                          

that Cassie "did not establish that [Lewis's] substance abuse . . . directly impacted the                                                                                                                                                                                                                                                                                                    

parties' minor children."                                                                                         Accordingly she stated that the eighth factor "should not have                                                                                                                                                                                                      

weighed against either party."                                                                                                                The master nevertheless concluded that the remaining                                                                                                                                                          

evidence in the record regarding the other best interests factors was sufficient to support                                                                                                                                                                                                                                                                              

the court's custody decision and thus did not recommend a change to the custody award.                                                                                                                                                                                                                                                                                                                           

The superior court agreed, stating in a supplemental order that "[t]he other best interests                                                                                                                                                                                                                                                                           

factors support the Master's recommendations."                                                                                                                                                                                 

                                                             Lewis is correct that the eighth best interests factor considers only evidence                                                                                                                                                                                                                        

of substance abuse that "                                                                                              directly affects                                                      the emotional or physical well-being of the                                                                                                                                                    

                               33   However the court's supplemental decision - acknowledging that this factor  


does not weigh against either party, but concluding that the remaining factors support the  


court's  custody  determination  - renders  Lewis's  argument  concerning  the  court's  


                               33                            AS 25.24.150(c)(8) (emphasis added); see also, e.g., Barrett v. Alguire,  


 35 P.3d 1, 11 (Alaska 2001).  


                                                                                                                                                                                             -15-	                                                                                                                                                                                                         7304  

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

analysis of this factor in its original order moot. And while the evidence of Lewis's                                                         

substance abuse in the record has no bearing on the eighth best interests factor, the court                                                         

committed no error by considering Lewis's methamphetamine use as                                                                part   of its best     

                                34  Accordingly we conclude that the court's consideration of Lewis's  

interests analysis.                                                                                                                            

substance abuse did not constitute an abuse of discretion.  


            B.	         The Superior Court Did Not Abuse Its Discretion By Ordering Joint  


                        Legal Custody.  


                        Lewis argues that the superior court erred by ordering joint legal custody.  



Citing William P. v. Taunya P.,  


                                                            Lewis argues that "joint legal custody is inappropriate  


if the parents cannot communicate effectively."  He further notes that the court "found  


that [Cassie] had been refusing to communicate with [Lewis]."   Accordingly Lewis  


concludes that he should have been awarded sole legal custody.  We review a court's  



decision whether to grant joint legal custody for abuse of discretion. 


                        We held in  William P. that when a superior court concludes that parents  


cannot communicate effectively, the court does not err by electing to award sole custody  

                          37                                                                                                             38  


to one parent.                  We have reached this conclusion in other cases as well.                                                        Despite  


Lewis's characterization, the superior court here did not find that the parents could not  


communicate effectively - unlike in  William P. and related cases.  Rather the court  

            34          See  AS  25.24.150(c)(9)  (directing  the  court  to  consider  "other  factors  that  

[it]  considers  pertinent").  

            35          258 P.3d 812, 815 (Alaska 2011).  


            36          See  Houston  v.   Wolpert,  332  P.3d   1279,   1285  (Alaska  2014).  

            37          See   William  P.,  258  P.3d  at  815.  

            38          See  Houston,  332  P.3d  at   1285;  Co  v.  Matson,  313  P.3d  521,  525  (Alaska  


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noted that Cassie had not kept Lewis adequately informed of the children's medical  


treatment and lamented the "vicious circle" of Lewis hounding Cassie for information  

and Cassie becoming reticent due to frustration. But though the court acknowledged that  


the parents had  difficulty communicating  prior  to  the hearings,  it did  not find that  


communication was impossible.  


                    Furthermore the court's findingsand instructions for the parties suggest the  


court believed that the parties would be capable of communicating in the future.  The  


court instructed Cassie and Lewis that in the future, communication between the parents  


regarding the children's medical appointments should occur "in writing via email." And  


the court noted the parties' need for medical information about the children and "a good  


way to exchange it."   Because the court did not conclude that Cassie and Lewis are  


incapable of communicating, we decline to conclude that its decision to award joint  


custody constituted an abuse of discretion.  


          C.	       The Conditions Imposed On Lewis's Visitation Were Not Too Vague  


                    To Be Workable.  


                    In its written findings of fact and conclusions of law, the superior court  


directed Lewis to "maintain all therapeutic appointments while exercising visitation"  


with the children, to "follow therapeutic recommendations as to [Harold] and [Rachel],"  


and to "follow the visitation guidelines [set] by [Harold's] treatment facility or treating  


physician."  Lewis argues that these requirements are too vague to be workable.  He  


contends that unanswered questions precludehimfromcomplying with thecourt's order,  


including whether Lewis would be "allowed to seek a second opinion" if he does not  


agree   with         the     recommendations              and      what      procedures          he    is    to    follow       if  


                                                              -17-	                                                       7304

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"recommendations from two or more [providers] contradict each other."                                                                        We have held       

that uncertainty can be "fatal to the validity of [a] court's visitation . . . award[]."                                                                     39  

                                                                                                                                40  and Matthew P. v.  

                          We addressed similar arguments in  Virgin v. Virgin                                                                                        


              41  In  Virgin we considered a provision in a divorce decree indicating that if the  

Gail S.                                                                                                                                                            

mother remained in the city where she was then residing, the father's visitation should  


be "open and reasonable."42                             The father argued that this ambiguous provision rendered  


the order "too vague to be sustained upon review."43                                                       Noting that "[t]he order's only  


ambiguity" would become relevant only if the mother actually failed to move, we held  


that "[b]ecause it is unlikely that the parties will have to rely on this provision, its  


ambiguity is not fatal."44   We further held that the father could "ask the superior court to  


clarify its order" as needed.45                           In Matthew P. we similarly acknowledged that a superior  


court "could have been more precise in articulating what it expected [the appellant] to  


do in order to remove the requirement for supervised visitation."46                                                               But we held that the  


             39           Long v. Long              , 816 P.2d 145, 157 (Alaska 1991).

             40           990 P.2d 1040 (Alaska 1999).

             41           354 P.3d 1044 (Alaska 2015).


             42           990 P.2d at 1048.


             43           Id.

             44           Id.

             45           Id.

             46           354 P.3d at 1050-51.  


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parties could resolve any confusion "about what issues the court wants addressed" by                                                                                                           


"mov[ing] the [superior] court for clarification."                                                                  

                              Here we are similarly unpersuaded that the court's order is too vague to be  


sustained upon review.   Like the provision examined in  Virgin, the majority of the  


ambiguities Lewis describes would become relevant only under a narrow set of future  

circumstances that are not certain to occur.  We suggest the parties should resolve any  


future confusion concerning the superior court's instructions by moving that court for  




               D.	             The   Requirement   That   Rachel's   Extracurricular   Activities   Be  


                              Maintained Was Not Overly Restrictive.  


                              Themaster recommended that Rachel's "participationinherextracurricular  


activities . . . be maintained in the State of Alaska."  The superior court's written order  


stated that "[t]he minor children's extracurricular activities shall be maintained by both  




                            Lewis  argues  that  the  requirement  that  the  children's  participation  in  


extracurricular  activities  be  maintained  was  overly  restrictive.                                                                                      He  contends  that  


decisions about what activities children should participate in are "choices that are a  


parent's to make, not a court's."  We review this portion of the court's order for abuse  



of discretion. 

               47	            Id.  at 1051.   

               48             The order also stated that "[Harold's] participation in . . . practices and                                                                                    

competitions shall be maintained during [Lewis's] visitation." The reference to Harold,                                                                                             

rather than Rachel, is apparently an error; during the hearings the court heard testimony  


about Rachel's participation in practices and competitions, and indicated its desire to                                                                                                         

ensure her participation continued.                                              

               49             See Frackman v. Enzor, 327 P.3d 878, 884 (Alaska 2014).  


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                          We considered a similar situation in                                    Frackman v. Enzor                     .    Noting that the          

parties' son was "a gifted athlete and may have a chance to play baseball professionally,"                                                   

the   superior   court   "allowed   [his   father] '[to]                                      authorize   [the   son]   to   attend   baseball  

training, tournaments, and related activities' on Sundays even though [the mother's]                                                                    

                                                                                  51    We affirmed, reasoning that "the superior  

visitation was also ordered for Sundays."                                                                                                                  

court properly concluded . . . that [the son's] best interests - here, developing his  


baseball skills and eventually his potential to become an accomplished athlete - took  

precedence over [the mother's] right to have visitation on Sundays."52  


                          Here the court heard evidence that Rachel is an extremely accomplished  


athlete, and it found that she "may very well be on course to being an Olympic athlete."  


The court further stated that Rachel's passion would give Lewis "an opportunity to  


engage in that [activity] with her . . . in Alaska."  In light of these findings, we conclude  


that  the  requirement  that  Rachel's  participation  in  practices  and  competitions  be  


maintained during Lewis's visits did not constitute an abuse of discretion.  The court's  


order takes Rachel's best interests into account, and it does not seem likely to unduly  


impact Lewis's visitation or his relationship with his daughter.  


             E.	           The Superior Court Did Not Deny Lewis His Right To Due Process By  


                          Ignoring The Rules Of Civil Procedure.  


                          Lewis argues  that  the court  "effectively  denied  [him]  his  right  to  due  


process" by failing to order Cassie to respond to his discovery requests in a timely  


             50           Id.

          Id.  (second alteration in original). The                                  court provided that themother                              could  

make up missed visits on other days.                                       Id.  

             52	          Id.  

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


 fashion,             declining to conclude that Cassie waived her right to object to his requests, and                                                                           


 failing to grant Lewis sufficient time to address deficiencies in Cassie's responses.                                                                                            He  


 further argues that because he received Cassie's answers less than two weeks before the  


 March hearing, and because the court denied his request to reschedule the hearing, Lewis  


 did not have an opportunity to respond to the deficiencies in Cassie's answers to the  


 interrogatories or to "deal with [Cassie's] failure to produce any documents."  And he  


 contends that because Cassie did not respond to Lewis's discovery requests in a timely  



 fashion, the court should have concluded that she had waived her right to object. 

 "Whether the superior court violated a party's due process rights is a question of law,                                                                                        

which we review de novo."                                  56  

                             Even assuming the truth of Lewis's allegations, any violation of the Alaska                                                                   

 Civil Rules must have prejudiced Lewis in order to warrant disturbing the custody                                                                                      

                                          57     "The party alleging error bears the burden of showing the error  

modification order.                                                                                                                                                            

               53            See   Alaska   R.   Civ.   P.   33(b)(3)   (setting   time   limit   for   objecting   to  


               54            See  Alaska  R.  Civ.  P.  33(b)(4)  ("All  grounds  for  an  objection  to  an  


 interrogatory shall be stated with specificity. Any ground not stated in a timely objection  


 is waived unless the party's failure to object is excused by the court for good cause  



               55            See id.  


               56            Easley v. Easley, 394 P.3d 517, 520 (Alaska 2017) (quoting McCarrey v.  


Kaylor, 301 P.3d 559, 563 (Alaska 2013)).  


               57            Alaska R. Civ. P. 61 ("[N]o error or defect in any ruling or order or in  


 anything done or omitted by the court . . . is ground for granting a new trial or for setting  


 aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order,  


unless refusal to take such action appears  to the court inconsistent with substantial  


justice."); see Roberson v. Morrison, No. S-15361, 2014 WL 6091943, at *2 (Alaska  



                                                                                        -21-                                                                                  7304

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

was prejudicial."                          58  But Lewis does not attempt to show how he was prejudiced by the                                                                                                   

procedural deficiencies, and it is not clear how he could do so.                                                                                               When Lewis's request  

that the March hearing be rescheduled was denied, he was granted an opportunity during                                                                                                                   

that hearing to ask Cassie for any information she had not provided during discovery.                                                                                                                                      

After asking                    Cassieseveralquestions,                                       Lewis indicated that thecourthad                                                  "fullyaddressed   

 [his] concerns about the discovery."                                                       Earlier in the proceeding, the master asked Lewis                                                             

whether he "fe[lt] like [his] case ha[d] been prejudiced by the lack of discovery from                                                                                                                      

 [Cassie]."    Lewis replied that his only concern had been Cassie's failure to respond to   

his interrogatories. Accordingly                                                 wehold              thatany             procedural deficiencies wereharmless.                                                             

IV.              CONCLUSION  

                                  For the foregoing reasons, we AFFIRM the judgment of the superior court.  


                 57               (...continued)  


Nov. 12, 2014) (rejecting claim that superior court's delay in issuing final decision  


violated Alaska Rules of Civil Procedure and appellant's due process rights, because  


appellant "ha[d] not shown any prejudice from the timing of the superior court's order");  


McDonald v. Dean, No. S-10914, 2004 WL 243557, at *3 (Alaska Feb. 11, 2004)  


(rejecting due process claim arising from a child custody dispute because "although [the  


father] failed to strictly comply with Alaska Civil Rule 77 . . . any procedural defect was  


                 58              Jerry B. v. Sally B., 377 P.3d 916, 930 (Alaska 2016).  


                                                                                                       -22-                                                                                                 7304

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