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V. Deininger v. J Deininger (7/31/92), 835 P 2d 449
Notice: This is subject to formal
correction before publication in the Pacific
Reporter. Readers are requested to bring
typographical or other formal errors to the
attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
VIVIEN R. DEININGER, ) Supreme Court File No. S-4795
) Superior Court File No.
) 4FA-90-2039 Civil
v. ) O P I N I O N
JAMES W. DEININGER, JR., )
______________________________) [No. 3874 - July 31, 1992]
Appeal from the Superior Court of the
State of Alaska, Fourth Judicial District,
Fairbanks, Niesje J. Steinkruger, Judge.
Appearances: Daniel L. Callahan,
Schendel & Callahan, Fairbanks, for
Appellant. Dennis E. Cook, Staley, DeLisio,
Cook & Sherry, Inc., Fairbanks, for Appellee.
Before: Rabinowitz, Chief Justice,
Burke, Matthews, Compton and Moore, Justices.
James and Vivien Deininger were married in August 1977.
They have three children: Jeremy, born April 21, 1979; Jenny,
born March 31, 1982; and Johanna, born February 27, 1985.
In 1985, James and Vivien joined the Jehovah's
Witnesses and raised their children in that religion. In 1990,
James quit the church. That same year, James filed for a divorce
from Vivien. Both parties sought interim custody of the
children. After a hearing, the trial court awarded interim
custody to Vivien and granted James visitation on alternating
weekends and every Wednesday overnight. James and Vivien
independently agreed to discontinue the Wednesday night visits
when it became apparent that these overnights were difficult for
Johanna, the parties' youngest daughter.
The court's child custody investigator filed a written
custody evaluation in June 1991. She observed:
This is a particularly sad case because
it involves two very good parents who care
deeply about their children. Their religious
beliefs differ significantly and there is
potential for this to cause a great deal of
problems for the children. The differences
in beliefs also translates into different
lifestyles. The lifestyle the children have
been raised with [for] most of their lives .
. . is very comfortable and a very solid
foundation for them. I do not believe that
it will be beneficial for the children to
have that foundation rocked at this point in
The investigator recommended awarding Vivien primary custody of
the children during the school year subject to James' visitation
on alternate weekends from Friday evening until Tuesday morning.
She further recommended awarding James primary custody during the
summer starting one week after school ends until two weeks before
school begins with Vivien having visitation on alternate
At trial, James sought a 50/50 custody arrangement on
an alternating week schedule.1 James testified that the interim
custody arrangement had interfered with his ability to stay
actively involved with the children. He testified that a shared
custody arrangement on an alternating week schedule would better
allow him to maintain his involvement in the children's school
projects and extracurricular activities. He also explained that
the custody arrangement proposed by the child custody
investigator was incompatible with his work schedule, since as a
geologist, he often spent significant blocks of time doing field
work during the summer. Vivien opposed this alternating schedule
on the grounds that the children needed the continuity and
stability which she could provide and urged the court to adopt
the custody schedule recommended by the custody investigator.
The child custody investigator testified that James and
Vivien were both loving and involved parents. She observed that
they were able to set aside their differences and talk about the
children and their needs. However, she noted that James' mother,
who lived part-time with James at the time of trial, had
repeatedly made disparaging comments to the children about their
mother and her involvement with the Jehovah's Witnesses.
Although she did not find that James had ever directly criticized
Vivien or her religion in front of the children, the investigator
testified that she believed that James did not accept Vivien's
lifestyle and that the children were aware of his attitude. She
further testified that the children needed and wanted to stay
together. She recognized, however, that the children had
different needs. Jeremy, the twelve-year-old, needed to spend
more time with his father. Johanna, the six-year-old, had the
most difficulties adjusting to her parents' divorce and needed
more time with her mother. The custody investigator expressed
particular concern over Johanna's ability to cope with joint
custody at the time of the divorce. On cross-examination, she
testified she could not predict if Johanna would be able to
handle such a situation in the future. She concluded that an
alternating week schedule would heighten lifestyle differences
and make it more difficult for the children to adjust to their
parents separation and divorce. However, she later conceded that
exposure to both households could be positive if both parents
accepted the other's lifestyle.
At the close of trial, Judge Steinkruger granted the
parties joint legal custody. For the first two years following
the divorce, she awarded Vivien primary physical custody and
James visitation on alternating four-day weekends during the
school year, and in alternating two-week blocks during the
summer. Starting August 1993, the court ordered Vivien and James
to share physical custody equally on an alternating week basis.
The court observed:
It's my feeling that 50/50 split of the
children is not appropriate at this stage
because of the present needs of the children
to adjust to their parent's separation and
divorce and their need for stability and
security based upon the kind of background
that they've had and the testimony I've heard
here. The lifestyle differences between the
parents are fairly extreme, children need an
adjustment period. Their father needs a
period of time to create a neutral home so
the kids don't feel that they have to be on
one side or the other. We'll see by 1993 if
that sort of plan can work out.
Judge Steinkruger ordered the parties to enter into mediation to
help them make the transition to the shared physical custody
arrangement in 1993. She also ordered counseling for Johanna and
a custody workshop for James' mother. The court entered its
written findings of fact and conclusions of law on September 24,
1991. This appeal followed.
This court will overturn a custody award only where the
trial court has abused its discretion or if the controlling
findings of fact are clearly erroneous. See Julsen v. Julsen,
741 P.2d 642, 648-49 (Alaska 1987). "An abuse of discretion may
be found where the trial court considered improper factors,
failed to consider statutorily-mandated factors, or improperly
weighed certain factors in making its determination." Id. at
Vivien argues that the trial court's custody award
effects an automatic modification of custody in 1993 and
therefore constitutes an abuse of discretion because this
"modification" is not based on the statutorily mandated factors
governing modification of custody. See AS 25.20.110; Long v.
Long, 816 P.2d 145 (Alaska 1991) (a child custody award may be
modified if the court determines that a change in circumstances
requires the modification and the modification is in the best
interests of the children involved).
We believe that it is a mischaracterization of the
court's order to construe it as effecting an automatic
modification of custody. Trial courts have broad discretion to
fashion custody awards designed to meet the unique needs of the
individuals involved. Gratrix v. Gratrix, 652 P.2d 76, 79
(Alaska 1982). In this case, the court found that it was in the
children's best interests "to maintain stability, but to allow
for gradual change."Consequently, the court ordered a two year
adjustment period in which Vivien would have primary custody and
James would have liberal visitation rights. The court emphasized
that this arrangement would give the children time to adjust to
moving between two households and that it would give James time
to create a positive home environment. We believe that it is
well within the trial court's discretion to order a 50/50 shared
physical custody arrangement implemented over a two-year period.
We are impressed by Judge Steinkruger's thoughtful and
sensitive approach to a difficult problem. She carefully
balanced the disparate needs of each of the children to create an
innovative custody award. The record demonstrates that both
James and Vivien are excellent parents committed to their
children's well-being. They have already demonstrated their
ability to make joint decisions concerning the children despite
their religious differences. On the record presented we affirm
the court's ruling calling for shared physical custody
implemented over a two-year period.
1. This alternating schedule was first proposed by Jeremy,
the parties' oldest child.