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R. Dingeman v. A. Dingeman (12/23/93), 865 P 2d 94
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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
ROBERT DENISON DINGEMAN, )
) Supreme Court No. S-5299
Appellant, )
) Trial Court No.
v. ) 4FA-91-232 Civil
)
ANNE KELLEY DINGEMAN, ) O P I N I O N
)
Appellee. ) [No. 4038 - December 23, 1993]
______________________________)
Appeal from the Superior Court of the
State of Alaska, Fourth Judicial District,
Fairbanks,
Mary E. Greene,
Judge.
Appearances: James R. Blair, Bliss
Riordan, Fairbanks, for Appellant. Robert C.
Erwin, Erwin & Smith, Anchorage, for
Appellee.
Before: Moore, Chief Justice,
Rabinowitz, Burke, Matthews and Compton,
Justices.
MATTHEWS, Justice.
This appeal concerns the child custody award in the
divorce action between Robert Dingeman and Anne Dingeman.
I. FACTUAL AND PROCEDURAL BACKGROUND
Bob Dingeman and Anne Kelley met in the fall of 1989
when Anne responded to a "singles ad"that Bob placed in the
Anchorage Daily News. At the time, Bob resided in Fairbanks and
worked as an orthopedic surgeon in his own private practice.
Anne resided in Wasilla and was employed as a dispatcher with the
Palmer Police Department. After exchanging frequent phone calls,
the parties met several weekends in both Fairbanks and Wasilla.
The longest meeting was for approximately a week around Christmas
1989. At this time Anne became pregnant.
Anne subsequently moved to Fairbanks in February of
1990 and moved in with Bob and his seventeen-year-old son Matthew
from a previous marriage. The couple married on October 1, 1990,
two weeks after the birth of their daughter Kristina.
On December 14, 1990, after an argument concerning
Matthew's behavior, Anne took Kristina and left the house,
driving to Wasilla. Bob had asked Anne to leave, but at trial
took the position that he contemplated that she would only be
gone for the weekend. However, his request that Anne leave
clearly had deeper implications, as Anne asked, according to
Bob's account, "Well, is my stuff going to be packed when I get
home?" Bob responded, "I don't know."1 Anne called Bob that
night from Wasilla. During the ensuing week, Bob and Anne had a
number of telephone conversations. They formerly had plans to
travel to San Diego over Christmas to visit with Bob's parents.
However, Anne told Bob she was no longer comfortable with this
and that she was going to New Hampshire to visit her brother.
Anne called Bob's parents from New Hampshire on Christmas Eve and
thereafter the parties had a number of telephone discussions,
although it was evident that the relationship was steadily
deteriorating. Anne remained with Kristina in New Hampshire
after the holidays and did not return to Alaska until July of
1991.
Both parties filed for divorce in mid-February of 1991.
Initially, both parties sought both legal and physical custody of
Kristina. At trial Bob modified his position, stating that he
wanted joint legal custody and equal physical custody. However,
in final argument his counsel again requested sole legal custody
and primary physical custody. Following the trial, the superior
court granted sole legal custody and primary physical custody of
Kristina to Anne with liberal visitation rights to Bob.2 Bob has
appealed.
II. DISCUSSION
A. Did the Trial Court Err in Awarding Sole Legal
Custody and Primary Physical Custody of Kristina to
Anne?
The dispute in this appeal centers on the custody of
Kristina. We have noted previously that child custody disputes
are among the most difficult decisions a trial court must face.
A trial court is vested with broad discretion in determining
custody. Julsen v. Julsen, 741 P.2d 642, 648-49 (Alaska 1987)
(citing McDanold v. McDanold, 718 P.2d 467, 468 (Alaska 1986)).
We reverse a trial court's custody determination "only if . . .
convinced that the record shows an abuse of discretion or if
controlling factual findings are clearly erroneous."Id. at 649.
"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. A factual finding by the trial court
will be found clearly erroneous when we are "'left with a
definite and firm conviction on the entire record that a mistake
has been made, even though there may be evidence to support the
finding.'" Brosnan v. Brosnan, 817 P.2d 478, 480 (Alaska 1991)
(quoting Martens v. Metzgar, 591 P.2d 541, 544 (Alaska 1979))
(emphasis added). Thus, we do not readily second guess a trial
court's custody determination. Rather, we accord substantial
deference to its decision and rely on its judgment in close cases
when substantial evidence supports both sides.
In determining custody, the trial court considered all
of the statutorily-mandated factors set out in AS 25.24.150 and
determined that the parties were equal in all factors except
subsection (c)(2): the capability and desire of the parent to
meet the physical, emotional, mental, religious, and social needs
of the child. The court found that "both parents are capable of
meeting Kristina's needs . . . [but] on balance, Mrs. Dingeman is
better suited to meet those needs than is Dr. Dingeman." Bob
urges this court to reverse the custody award, arguing that (1)
several of the trial court's factual findings are clearly
erroneous; and (2) the trial court abused its discretion by
considering improper factors in making its decision and giving
improper weight to other factors.
1. The trial court's finding that Anne was
more capable of meeting Kristina's needs.
The trial court made several statements and findings
concerning the parties that provide the context for the difficult
decision the trial court faced. The court discussed the clear
animosity between the parents and the fact that such feelings
affected their testimony at trial. As a result, "[t]he trial in
this case was ugly. Mud was slung and lies were told." The
court concluded that "neither side has ownership of the truth and
the objective facts. . . . [Rather the] truth lies somewhere
between the parties' perception of reality." After considering
the statutorily-mandated factors in light of these findings, the
court found that "the only factor which distinguishes between the
parents is Anne Dingeman's somewhat greater ability to meet the
needs of Kristina." The court based this finding on two specific
factors: "(1) Dr. Dingeman's need to dominate in relationships;
and (2) Dr. Dingeman's occasional inability to put the needs of
Kristina over his needs." Bob argues that neither factor is
supported by the evidence.
The record provides sufficient evidence to support the
conclusion that Bob tends to dominate in relationships. The
court relied on the Child Custody Investigator's opinion, which
it found to be supported by the reports of Anne and of Bob's son
Matthew, and the report of Dr. Cragan, who conducted a
psychological test of Bob for custody purposes. These sources
all presented evidence that Bob preferred to be the dominating or
controlling individual in a relationship. The trial judge was in
a unique position to consider and weigh the testimony of the
witnesses, particularly Anne and Bob, and the court gave more
credit to Anne's testimony on this issue.3 The evidence and the
record thus support the factual finding of the trial court and
the finding is not clearly erroneous.4
The court also found "that on occasion, though
certainly not consistently, Dr. Dingeman has been unable to
separate Kristina's needs from his needs." The court relied on
the fact that Bob changed daycare frequently, often kept Kristina
in his office during working hours, and did not deal effectively
with ear problems Kristina was experiencing. The trial court
found that although Bob generally was able to put Kristina's
needs first, at times his "ability to recognize Kristina's needs
was clouded by his overriding concerns about Mrs. Dingeman
attempting to interfere with his custody rights." This finding
is supported by the evidence presented at trial and is therefore
not clearly erroneous.
2. Is the trial court's finding that
neither parent is willing to foster a relationship
between Kristina and the other parent clearly
erroneous?
The court noted specifically that it had "serious
concerns as to either parent's desire or ability to allow the
other to have a full relationship with Kristina." The court
therefore found that AS 25.24.150(c)(6) did not favor either
parent. Bob argues that there is no evidence to support the
court's conclusion that he would not foster an open relationship
between Kristina and Anne. He points specifically to the trial
court's statement that "[b]ecause of the factual situation, it is
more difficult to point to specific examples of Dr. Dingeman's
reluctance to allow a full and open relationship."
The trial court's finding is not clearly erroneous, as
sufficient factual evidence exists in the record to support the
court's finding that the animosity between this couple would not
allow either one to encourage a relationship between Kristina and
the other parent. Judge Greene concluded that
the depth of the feelings and the
dynamics of the relationship between Anne
Dingeman and Robert Dingeman make it
impossible for either of them willingly to
foster an open and loving frequent
relationship between Kristina and the other
parent. . . . [E]ither would obey court
orders that were entered, but . . . neither
is able to do the extra things required to
foster an emotional relationship.
Despite the lack of specific factual situations that
the court can point to, multiple indications of Bob's feelings
towards Anne exist in the record that support the trial court's
conclusion. He testified at trial that Anne had a personality
disorder which Kristina should not be exposed to, that Anne was
irrational, and that he had done nothing wrong to contribute to
or cause the break-up of his marriage. He hired private
detectives to follow Anne, and taped several of their
conversations without her knowledge. Judge Greene admonished Bob
at trial for laughing and grimacing while Anne was testifying.
After witnessing his demeanor and testimony, in conjunction with
the evidence presented, Judge Greene assessed the weight and the
credibility of the evidence and found that the feelings between
Bob and Anne would prevent Bob from fostering an open
relationship between Kristina and Anne.5
B. Did the Trial Court Abuse its Discretion in
Failing to Order a Psychiatric Examination of Anne
Dingeman?
On January 13, 1992, Bob filed a motion with the
superior court based on Alaska Rule of Civil Procedure 35
requesting that Anne be ordered to undergo psychological testing.
The rule provides:
(a) Order for Examination. When
the mental or physical condition (including
the blood group) of a party, or of a person
in the custody or under the legal control of
a party, is in controversy, the court in
which the action is pending may order the
party to submit to a physical or mental
examination by a physician or to produce for
examination the person in his custody or
legal control. The order may be made only on
motion for good cause shown . . . .
Alaska R. Civ. P. 35. The court denied the motion, noting that
if the Child Custody Investigator requested testing, the court
would order the testing. Bob argues that as his affidavit and
memorandum in support of the motion "clearly placed the mental
condition of Anne Dingeman at issue,"the trial court abused its
discretion by not ordering the examination. Bob contends that
the information in his motion is sufficient to indicate "probable
cause to believe that a personality defect exists,"and therefore
an exam should have been ordered. We disagree.
Two pre-requisites must be met before an order may be
issued under both the federal6 and the Alaska rule: (1) that the
mental condition be "in controversy,"and (2) that "good cause"
exist for the examination.7 One court has defined these two
requirements as follows: "in controversy" -- i.e. "directly
involved in some material element of the cause of action or a
defense"; and "good cause"-- "i.e. that the mental state of
petitioner, even though 'in controversy,' cannot adequately be
evidenced without the assistance of expert medical testimony."
Gasparino v. Murphy, 352 So. 2d 933, 935 (Fla. Dist. App. 1977).
The United States Supreme Court noted that these two requirements
are not met by mere conclusory
allegations of the pleadings--nor by mere
relevance to the case--but require an
affirmative showing by the movant that each
condition as to which the examination is
sought is really and genuinely in controversy
and that good cause exists for ordering each
particular examination . . . . The ability
of the movant to obtain the desired
information by other means is also relevant.
Schlagenhauf v. Holder, 379 U.S. 104, 118 (1964).
Bob has not met either pre-requisite of Rule 35. It
can be argued that the mental health of the parents is always an
issue in child custody cases. However, the record provides no
evidence other than Bob's conclusory allegations that supports
the contention that Anne's mental health is in controversy. The
conclusions of a spouse involved in a custody hearing are not
sufficient to meet the requirement that the mental health of the
party is "in controversy"within the meaning of Rule 35.8
Nor did Bob present evidence showing "good cause" for
ordering an examination. The requirement of good cause is not
just a formality.9 Rule 35 specifically requires good cause in
order to provide some protection for parties subject to the rule.
As noted in Gasparino, "[d]iscovery of this type is of the most
personal and private nature. The potentially negative effects of
requiring petitioner to bare his inner self against his wishes
are self-evident." Gasparino, 352 So. 2d at 935. As Bob did not
meet either of the pre-requisites of Rule 35, the trial court did
not abuse its discretion in refusing to order a psychiatric
examination of Anne.10
III. CONCLUSION
As evidenced by the fact that the trial court found
only one factor differentiating the parents' ability to care for
Kristina, this decision was a difficult one for the trial court.
The court weighed all the evidence before it and concluded that
Kristina's interests were best met by granting sole legal custody
to her mother. The factual findings upon which this
determination was made were not clearly erroneous, and the trial
court did not abuse its discretion by considering improper
factors or weighing factors improperly in making its custody
determination. For these reasons we AFFIRM the decision of the
trial court.
_______________________________
1 This was a reference to an incident which occurred in May
of 1990 when Anne told Bob that she could not marry him, to which
he responded, "Can you be out of the house in 36 hours?" She
left immediately. He proceeded to pack her belongings and by the
time she returned "fairly late"he had already moved some of them
out of the house.
2 The decree grants Bob physical custody of Kristina during
the following periods:
a. Every other weekend, for up to
four days. Notice of the intended start
and end of visitation must be provided
at least 72 hours prior to the beginning
of such visitation. After Kristina
enters school, this visitation may not
interfere with her school attendance.
If necessary, the timing should be
rearranged to correspond with days that
Kristina does not go to school, such as
in-service days and school holidays.
b. During the summer, one week
per year of age, up to a maximum of ten
weeks. Notice of the beginning of
summer visitation must be given 30 days
in advance of the visitation.
c. In alternating years,
beginning and continuing in even
numbered years, two weeks at Christmas.
After Kristina begins school, this
period will correspond to her vacation
from school.
d. Every other year beginning and
continuing in odd numbered years, one
week at Thanksgiving. After Kristina
begins school, this period will decrease
to reflect her actual school vacation.
e. A one week period in the
spring, designated 30 days in advance,
until Kristina reaches school age. This
period shall be her spring vacation
after she begins school.
f. Father's Day, even if not in
the regular rotation of weekends.
3 Bob argues that the trial court abused its discretion by
"disregarding"the testimony of Bob's psychiatrist, Dr. Martino.
Dr. Martino testified that Bob was not a controlling individual.
In discussing her finding that Bob had a dominating personality
that would affect Kristina, the trial court noted that it
relie[d] less on Dr. Martino's opinion
that Dr. Dingeman is not a "controlling"
individual. Although Dr. Martino is an
eminently qualified psychiatrist, his ability
to judge Dr. Dingeman's relationships with
others is diminished by the fact that he has
received a very one-sided view from an
individual who has a very marked desire to
look good.
The court, however, did not disregard Dr. Martino's testimony.
Rather it relied less on his testimony than it did on the
testimony of those who were actually in relationships with Bob --
his wife and son. This does not rise to the level of an abuse of
discretion.
4 Bob also argues that even if it were true that he is a
controlling or dominating individual, the trial court abused its
discretion in considering this factor, as no evidence was
presented as to how this factor would affect the best interests
of Kristina.
The trial court found, however, that Bob is controlling in
his relationships in general, and not just in his relationship
with Anne. The evidence indicating that Bob was dominating in
relationships in general leads to the logical conclusion that
that personality trait would carry over into any relationship
with his daughter Kristina. Therefore, the trial court did not
abuse its discretion in considering how Bob's dominating
personality would affect his ability to meet Kristina's needs.
5 Bob also argues that the trial court abused its discretion
in making the custody determination by failing to give adequate
weight to several factors: Anne's moving from Alaska with
Kristina for eight months and Anne's allegations that Bob was an
alcoholic, used drugs, and physically abused her. The trial
court found the alcohol, drug, and physical abuse allegations to
be incredible. The record indicates, however, that the trial
court considered all these factors and noted them in its
decision. As Bob presents no evidence, other than the fact that
he did not win custody, to support his claim that the trial court
did not properly consider these factors, we cannot find that the
trial court abused its discretion.
6 The language of the federal rule is almost identical. As
there is no Alaska case law on this issue, we may look to federal
law interpreting a similar rule. The federal rule provides in
part:
(a) Order for Examination. When
the mental or physical condition (including
the blood group) of a party or of a person in
the custody or under the legal control of a
party, is in controversy, the court in which
the action is pending may order the party to
submit to a physical or mental examination by
a suitably licensed or certified examiner or
to produce for examination the person in the
party's custody or legal control. The order
may be made only on motion for good cause
shown . . . .
Fed. R. Civ. P. 35.
7 Some courts have held that the discretion vested in the
trial court is so broad that even upon a showing that the
condition is in controversy and that good cause exists for the
exam, the trial court may still refuse to order the exam. Coca-
Cola Bottling Co. of Puerto Rico v. Negron Torres, 255 F.2d 149,
153 (1st Cir. 1958); Bucher v. Krause, 200 F.2d 576, 584 (7th
Cir. 1952), cert. denied, 345 U.S. 997 (1953); Hardy v. Riser,
309 F. Supp. 1234 (N.D. Miss. 1970).
8 See Brooks v. Brown, 744 S.W.2d 881, 882 (Mo. App. 1988)
(conclusory statements and personal testimony of husband in
custody case insufficient to place mental health of wife in
controversy); Neuman v. Neuman, 377 A.2d 393, 399 (D.C. App.
1977) (wife's contention that mental examination of husband would
be helpful for determining custody insufficient to place mental
health of husband in controversy).
9 Examples of cases in which courts have found "good cause"
include Schlagenhauf, 379 U.S. at 119 ("plaintiff in a negligence
action who asserts mental or physical injury places that mental
or physical injury clearly in controversy and provides the
defendant with good cause for an examination . . . ."); Olcott v.
LaFiandra, 793 F. Supp. 487, 492 (D. Vt. 1992) (good cause for
physical exam exists where plaintiff alleges she cannot work due
to extent of injuries that are the subject of lawsuit); In Re
Marriage of Gove, 572 P.2d 458, 462 (Ariz. App. 1977) (good cause
for psychiatric exam of mother seeking custody exists where
psychiatrist treating her two months previously diagnosed her as
manic depressive with paranoic schizophrenic possibilities).
10 Bob also argues that the trial court abused its discretion
when it set a six-hour time limit for each side to present its
evidence. Without a more specific objection, it is difficult to
say the trial court abused its discretion. Bob's general
argument that "counsel did not have enough time to prove all that
he needed to prove" is insufficient to show an abuse of
discretion by the trial court.
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