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A. Carstens v. R. Carstens (2/11/94), 867 P 2d 805
Notice: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers
are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage,
THE SUPREME COURT OF THE STATE OF ALASKA
ANN MARIE CARSTENS, )
) Supreme Court No. S-5039
) Superior Court No.
v. ) 3KO-90-400 DR
RICHARD JAMES CARSTENS, ) O P I N I O N
Appellee. ) [No. 4052 - February 11, 1994]
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Donald D. Hopwood,
Appearances: Walter W. Mason, Jamin,
Ebell, Bolger & Gentry, Seattle, for
Appellant. Steve Cole, Gray, McLean, Cole &
Razo, Kodiak, for Appellee.
Before: Moore, Chief Justice,
Rabinowitz, Burke, Matthews and Compton,
COMPTON, Justice, dissenting in part.
Ann Carstens contests the judgment determining child
custody and support, property division, and attorney's fees in
the divorce action brought by her former husband, Richard
Richard and Ann Carstens were married twenty-three
years. For the last eighteen years of the marriage the couple
lived in Kodiak with their three children, Michael, Daniel, and
Elizabeth. Only custody of Elizabeth is at issue in this case as
the two sons are over eighteen and independent.
Over Labor Day weekend of 1990, Ann left Kodiak with
Elizabeth and went to Sioux City, Iowa, to live with her
brother's family. At the time of trial, Ann had just bought a
small house and was working as recreation director at a nursing
home in Sioux City.
Richard filed for divorce in September of 1990, and Ann
was awarded interim custody of Elizabeth. The issues of custody
and property distribution were deferred, and the parties were
granted a divorce in April 1991. The issues of property division
and child custody were tried in the fall of 1991. In February
1992, the trial court granted Richard primary custody of
Elizabeth, divided the marital property equally, required Ann to
pay Richard $200 month in child support, and decreed that each
party pay his or her own costs and attorney's fees. Ann appeals.
I. CHILD CUSTODY AND SUPPORT1
The main dispute in this case centers on the custody of
Elizabeth. Ann advances three arguments concerning the trial
court's award of custody and child support to Richard: (1) the
trial court did not properly consider evidence of Richard's
physical and emotional abuse of Ann in determining custody; (2)
the trial court abused its discretion by not allowing discovery
of records pertaining to joint counseling previously sought by
Ann and Richard; and (3) the trial court abused its discretion in
the determination of child support under Rule 90.3. We address
these issues in turn.
A. Evidence of Abuse
Ann's primary argument on appeal is that the trial
court refused to consider evidence of Richard's physical and
emotional abuse of Ann as required by AS 25.24.150(c)(7).2
Furthermore, Ann contends that the court's refusal to consider
Richard's abuse of Ann "tainted"its evaluation of other custody
factors under AS 25.24.150.
Besides her own testimony, at trial Ann presented the
testimony of her therapist in Iowa, Pat Breitenstein, and the
guardian ad litem appointed in the case, Erica Kracker, to
support her allegations of spousal abuse.3 Besides his own
testimony, Richard presented testimony of his counselor in
Kodiak, Paul Ruff, that indicated Richard had adequately dealt
with issues of anger and abuse. Richard also presented testimony
that Ann disparaged Richard in the presence of Elizabeth.4
The court made extensive findings of fact on the issue
of custody that discuss the required factors to be considered in
AS 25.24.150. On the issue of abuse, the court found:
While the parties presented
evidence at trial that some physical and
verbal abuse by each other occurred in the
past, there is no showing that such conduct
is effecting, has effected, or will effect
[sic] significantly the emotional or physical
well-being of Elizabeth. A child custody
determination is to be made according to what
is in the best interest of the child, and not
as punishment to a parent for misconduct.
Accordingly, this evidence is not of
significant value in this custody
Ann cites Lowdermilk v. Lowdermilk, 825 P.2d 874 (Alaska 1992)
for the assertion that detailed findings are mandated when
spousal abuse is in issue. Ann claims the court made no such
detailed findings and therefore remand is required. Ann is in
error on both points.
In Lowdermilk, we noted that "despite extensive
evidence of spousal abuse in the record," the trial court
"ignored the issue of spousal abuse"and "abused its discretion
by failing to make findings in regard to spousal abuse." Id. at
879. In this case, direct evidence of abuse was minimal. Even
so, the trial judge made specific findings that there was no
showing that the abuse affected or would affect Elizabeth. He
thus fulfilled the requirements of AS 25.24.150(c)(7) and
Lowdermilk by specifically considering evidence of spousal abuse
and making factual findings on the issue as to the best interests
Ann's argument that the trial judge's refusal to
consider Richard's abuse of Ann "tainted"his consideration of
other custody factors rests on the faulty assumption that the
judge did not consider the allegations of abuse. As noted above,
the judge's findings of fact on the issue are well thought out.
He properly focused on the primary question of which party could
best meet Elizabeth's needs. Awarding custody of Elizabeth to
Richard was not an abuse of discretion.
B. Discovery of Joint Counseling File
Ann sought discovery under Alaska Rule of Civil
Procedure 26(b)5 of all the mental health records of Kodiak
Island Mental Health Center that pertained to Richard. Two files
were at issue: a file prepared by Paul Ruff, Richard's counselor
after the parties' separation, and another therapist's file from
1984 pertaining to joint counseling sought by Ann and Richard.
The trial court permitted discovery of the recent records, but
not the records from 1984. The court did not deny access to
these records on the basis that they were privileged, but because
it determined them to be irrelevant.
In our view this determination amounted to an abuse of
discretion. The mental health records presumably contained
information concerning the parties' conduct toward each other and
thus were relevant in the broad sense of relevance for discovery
purposes: "Alaska Civil Rule 26(b)(1) permits a party to
discover all evidence, not privileged, that would be relevant at
trial or that 'appears reasonably calculated to lead to the
discovery of admissible evidence.'" Doe v. Alaska Superior
Court, 721 P.2d 617, 620 (Alaska 1986). Mental health and joint
counseling records of divorcing parties have commonly been held
to be discoverable. See, e.g., Bishop v. Goins, 586 N.E.2d 905,
907 (Ind. Ct. App. 1992); In Re Marriage of Kiister, 777 P.2d
272, 275-76 (Kan. 1989); Perry v. Fiumano, 403 N.Y.S.2d 382, 385-
86 (N.Y. App. Div. 1978).
Ann argues that the court's denial of access to the
records was prejudicial error. Without any evidence in the
record concerning the content of the files, there is no way for
this court to determine prejudice. We therefore remand this
issue to the trial court and direct that the files be opened for
discovery. The trial court must determine whether the material
in the files warrants a new trial. Procedurally, the case should
be treated as though Ann had brought a motion to set aside a
judgment for newly discovered evidence under Alaska Rule of Civil
Procedure 60(b)(2), where due diligence was established. Ann
must show that the evidence is such that it "would probably
change the result on a new trial"and the evidence "must not be
merely cumulative or impeaching." Palmer v. Borg-Warner Corp.,
838 P.2d 1243, 1247 (Alaska 1992) (quoting Montgomery Ward v.
Thomas, 394 P.2d 774, 776 (Alaska 1964)).
C. Determination of Child Support
In determining Ann's child support obligation, the
trial court found:
Ann's income is below the poverty
level, and payments of rehabilitative alimony
will be used primarily for tuition and fees
or job training expenses. Absent other
circumstances, she would be obligated to pay
child support of only $50 per month. Civil
Rule 90.3(c)(1)(B). However, she will have a
large sum of cash soon, and she will earn
interest on that cash. Manifest injustice
would result if Ann's amount of support were
not increased. Civil Rule 90.3(c)(1). Her
cash on hand is a product of the marriage and
should be a source of funds to support a
child of the marriage. Ann will have no
other significant financial obligations, and
her additional education or training expenses
will be paid by the award of rehabilitative
alimony. Ann shall pay child support for
Elizabeth to Richard in the amount of $200
per month . . . .
Ann argues that, in determining child support, the trial court
abused its discretion in considering interest income that Ann
might potentially earn.
The court's determination that Ann's obligation can be
increased due to the interest income she will receive is
difficult to support without more specific findings. The record
does not indicate what amount the judge used in determining Ann's
$200 support obligation, what amount of interest he assumed Ann
would be earning, or what, if any, consideration he gave her
earned income. We have required that the "actual numbers . . .
used to calculate the child support award" be set forth in
findings supporting child support awards. Terry v. Terry, 851
P.2d 837, 838 (Alaska 1993) ("Findings are meaningless unless the
calculations upon which they are based are disclosed."). The
findings in this case fall short of this standard. We must
therefore reverse the child support award and remand to the trial
court to redetermine the award, "setting forth the actual numbers
and calculations used to make the determination." Id.
Although not raised by either party, in order for the
trial court to calculate properly an award on remand, we also
address the trial court's determination that Ann's income is
below the poverty level. Civil Rule 90.3(c)(1)(B) allows the
trial court to vary the child support award that would be due
under subsection (a) for "good cause." "Good cause"may include
a "finding that the parent with the child support obligation has
a gross income which is below the poverty level as set forth in
the Federal Register." Civil Rule 90.3(c)(1)(B). If such a
finding is made, then, as noted by the trial court, the statute
permits reducing the parent's obligation to $50 per month.
The trial judge found that Ann's income was below the
poverty level. He also found that Ann's take-home pay was
approximately $700 per month. Her yearly income is thus about
$8,400. The Federal Register lists the poverty level for Alaska
and Hawaii as $8,500 per year. However the poverty level for the
other 48 states is $6,810. (Fed. Reg., Feb. 14, 1992). Ann is
below the poverty level in Alaska, but above the poverty level in
Iowa, where she has worked and resided since 1990. Although
there is no indication in the rules or commentary as to which
poverty level should be applied, we find it logical to apply the
level for Iowa. The poverty level is higher in Alaska due to the
higher cost of living. Ann is not experiencing that higher cost
of living, and thus should not receive the "benefit" of the
higher poverty level. Using the Iowa poverty level, Ann no
longer falls under the exception of (c)(1)(B) permitting $50 per
month child support, but is required to pay support as determined
by section (a).
II. EQUITABLE DIVISION OF THE MARITAL PROPERTY6
This court has set out a three-step process for
superior courts to follow in determining an equitable division of
marital assets: "First, the trial court must determine what
specific property is available for distribution. Second, the
court must find the value of this property. Third, it must
decide how an allocation can be made most equitably." Wanberg v.
Wanberg, 664 P.2d 568, 570 (Alaska 1983) (footnote omitted). At
trial the parties agreed as to the property available for
distribution and its value. Ann argues on appeal that the trial
court erred in determining the third factor, equitable
distribution. She argues that the court erred in determining
that a 50/50 division was equitable and contends that a division
of at least 60/40 is required by the facts.7
Contrary to Ann's assertions, the trial court made
extensive findings on the parties' relative economic status and
the economic effects of the divorce. It was not an abuse of
discretion for the court to determine that a 50/50 split in
property was equitable. Ann received a cash buy-out of almost
$80,000, in addition to $20,000 for rehabilitative alimony.
While it is true that her earning capacity will probably not
reach that of Richard, that is not necessarily dispositive. A
lower earning capacity can justify an unequal property division
in favor of the disadvantaged spouse, Merrill v. Merrill, 368
P.2d 546, 547-48 n.4 (Alaska 1962), but it does not, as a matter
of law, mandate one. Here, rehabilitative alimony was awarded
and, as the trial court noted, the disparity in potential
earnings was also balanced to a degree by the fact that Richard
will have to incur substantial debt to pay Ann the cash buy-out.
Ann cites this court to numerous cases in which we have upheld
unequal property divisions. These decisions do not, however,
establish that the trial judge abused his discretion in this case
by awarding Ann an equal share of the property.8 We affirm the
trial court's property division.9
III. ATTORNEY'S FEES10
Both parties incurred substantial attorney's fees.
Richard's fees and costs totalled $33,405.56 and Ann's fees and
costs totalled $48,658.82. The court determined that both sides
should bear their own costs and fees, finding:
With the cash that Richard will pay
Ann for the property division and the
rehabilitative alimony, Ann can afford to pay
her own costs [and] attorney's fees. Ann's
ability to pursue her claims in this action
and to overcome the economic effects of the
divorce have not been, and will not be, less
than Richard's ability to do so if she pays
her own legal expenses.
Ann argues that because her "economic situation and earning
powers are but a fraction of Richard's, the trial court's failure
to grant her attorney's fees can only be viewed as arbitrary,
capricious, manifestly unreasonable, and stemming from an
improper motive." She therefore requests that this court reverse
and remand with instructions to enter an award of fees and costs
to Ann in excess of fifty percent.
The facts in this case are similar to those in Zimin v.
Zimin, 837 P.2d 118 (Alaska 1992). In Zimin, the wife argued
that the trial court erred in denying her request for attorney's
fees as her earning capacity was "significantly lower"than her
husband's. Id. at 124. We noted, however, that earning capacity
is not the only consideration in awarding attorney's fees. The
trial court "must also consider the parties' relative economic
situations as well as their earning capacity." Id. (citing
Rhodes v. Rhodes, 754 P.2d 1333, 1336 (Alaska 1988)).
The trial court did consider Ann's relative financial
situation after the divorce and found that she would be able to
pay her attorney's fees and costs. In light of Ann's cash
settlement and Richard's debt assumption to fulfill the terms of
the settlement, it was not an abuse of discretion for the court
to determine that it was equitable for the parties to pay their
own costs and fees.
The trial court's order awarding custody of Elizabeth
Carstens to Richard Carstens is REMANDED for a determination
whether the joint counseling file warrants a new trial on the
issue of custody. The trial court's determination of child
support is REVERSED and REMANDED for recalculation under Rule
90.3, accompanied by findings which set forth the actual numbers
and calculations used to determine the child support award.
The distribution of marital property11 and the denial of
attorney's fees are AFFIRMED.
COMPTON, Justice, dissenting in part.
In the past decade, courts and legislatures have come
to realize that spousal abuse affects the interests of children
in custody determinations. Accordingly, in 1989 the Alaska
Legislature amended AS 25.20.090 and AS 25.24.150 to include any
"history of violence between the parents"as a factor to be
considered in custody determinations. Ch. 52, 1-2, SLA 1989;
see Lowdermilk v. Lowdermilk, 825 P.2d 874 (Alaska 1992) (failure
to consider spousal abuse is abuse of discretion).
I am persuaded that the trial court did not correctly
address the issue of violence between Richard and Ann. The
evidence shows: (1) Richard physically abused Ann; and (2) Ann
made abusive and disparaging remarks about Richard in Elizabeth's
presence.12 From this the trial court concluded that "[w]hile the
parties presented evidence at trial that some physical and verbal
abuse by each other occurred in the past, there is no showing
that such conduct is effecting, has effected, or will effect
[sic] significantly the emotional or physical well-being of
Elizabeth." In this court's words, the trial court "made
specific findings that there was no showing that the abuse
affected or would affect Elizabeth." Op. at 5.
The trial court did not consider that Ann's alleged
"verbal abuse" toward and "denigration"of Richard might have
been in response to Richard's physical abuse. There is support
for the proposition that conduct provoking spousal abuse should
be viewed as a mitigating factor in the court's consideration.
See Nale v. Nale, 409 So. 2d 1299, 1302 (La. Ct. App. 1982)
(mother's discharging shotgun at father in response to argument
did not warrant award of custody of child to father); Lovett v.
Lovett, 164 N.W.2d 793, 801 (Iowa 1969) (provocation is a defense
to divorce based on verbal cruelty and abuse).
The trial court's approach to the issue of spousal
abuse illustrates the problem with its judgment: the fruits of
the physical abuse were used against the victim in the custody
determination. Ann's alleged verbal abuse was used both to
neutralize Richard's physical abuse, and to illustrate her
alleged emotional problems, which the trial court concluded
favored granting Richard custody of Elizabeth:
Some of Ann's emotional issues are to be
expected given her role during the marriage
and the parties' relative emotional strengths
and weaknesses, with Richard having the much
stronger personality and motivation; however,
whatever their legitimacy and source, Ann's
emotional circumstances will prevent her from
meeting Elizabeth's emotional needs as well
as Richard can.
We have held that it is an abuse of discretion to
"fail to make findings in regard to spousal abuse . . . , and
its effect -- if any -- on [the wife's] apparently unacceptable
mental state." Lowdermilk, 825 P.2d at 879. Richard should not
be permitted to benefit from his physical abuse.
I would remand the custody issue to consider also
whether Richard's physical abuse provoked Ann's verbal abuse, or
contributed to Ann's apparently unacceptable "emotional
1 In the area of child custody determinations the trial
courts have "broad discretion."Holl v. Holl, 815 P.2d 379, 380
(Alaska 1991) (citing Julsen v. Julsen, 741 P.2d 642, 648 (Alaska
1987)). We will reverse the trial court's custody determination
"only if we are convinced that the trial court has abused its
broad discretion, or if controlling findings of fact are clearly
erroneous." Id. Finally, we note that "[i]t is primarily the
trial court's function to weigh the evidence for the purpose of
making findings, and on appeal, deference must be given to the
trial court's decision, particularly because of the trial court's
advantage in observing the witnesses." Bonjour v. Bonjour, 566
P.2d 667, 669 (Alaska 1977).
2 The statute provides, in part:
(c) The court shall determine
custody in accordance with the best interests
of the child under AS 25.20.060--25.20.130.
In determining the best interests of the
child the court shall consider
. . .
(7) any evidence of domestic
violence, child abuse, or child neglect in
the proposed custodial household or a history
of violence between the parents[.]
3 Ann testified that Richard had hit her, elbowed her in
the ribs, pulled her hair, and flung her against a wall. Pat
Breitenstein, qualified in the area of abusive relationships,
testified that Ann exhibited classic symptoms of an abused
spouse. Finally, Erica Kracker reported and testified that she
thought Richard had ongoing issues of anger control that
4 Susan Thompson, a friend of the Carstens, and Helen
Desinger, Ann's sister, both testified that Ann verbally abused
and denigrated Richard in Elizabeth's presence.
5 The rule provides, in part:
(1) In General. Parties may obtain
discovery regarding any matter, not
privileged which is relevant to the subject
matter involved in the pending action . . . .
Alaska R. Civ. P. 26(b)(1).
6 We review a trial court's equitable distribution of
property "purely under the abuse of discretion standard and 'will
not . . . disturb [the division] unless it is clearly unjust.'"
Moffitt v. Moffitt, 749 P.2d 343, 346 (Alaska 1988) (quoting
Wanberg v. Wanberg, 664 P.2d 568, 570 (Alaska 1983)).
7 Ann argues that the court did not properly consider the
factors set out in AS 25.24.160(a)(4) for determining property
division: length of the marriage, the parties' station in life,
age and health of the parties, earning capacities, financial
conditions of the parties, conduct of the parties, and the
circumstances and necessities of each party.
8 Ann also argues that the trial court erred by not
awarding Ann an offset for Richard's rent-free use of the house
and marital property and by not awarding post-separation child
support. At trial, Richard asked that the court make an
adjustment for money he spent since the separation on maintenance
of marital property, some of Ann's expenses, taxes, and property
assessments. Ann asked for credits for rent she paid in Iowa,
compensation for Richard's use of marital property, and back
child support. The court disallowed both claims for offsets,
noting that "to the extent the respective amounts are not equal,
the benefits to the parties and their conduct eliminate any
difference." The trial court's determination was not an abuse of
9 Both parties note that guns valued at $650 were not
included in the trial court's disposition of property. The
parties stipulated that, out of the six guns the parties owned,
Richard would receive several valued at $650. The rest would be
sold. It appears that the court mistakenly believed that the
guns stipulated to go to Richard were the same set of guns the
parties agreed to sell. In fact there were two separate sets of
guns. Therefore the court made no reference to the $650 worth of
guns. It did not charge $650 to Richard's share of the property,
nor did it award Richard the guns. Upon remand for
redetermination of child support, the trial court is instructed
to distribute the guns and adjust the property settlement
10 We note that in a divorce action, if the parties are in
"comparable economic situations,"each party should bear its own
attorney's fees. Hartland v. Hartland, 777 P.2d 636, 644 (Alaska
1989). If the parties are not in comparable situations, then the
award of attorney's fees is within the discretion of the trial
court, and "will not be disturbed on appeal unless it is
'arbitrary, capricious, manifestly unreasonable, or stems from an
improper motive.'"Lone Wolf v. Lone Wolf, 741 P.2d 1187, 1192
(Alaska 1987) (quoting Brooks v. Brooks, 733 P.2d 1044, 1058
11 On remand for determination of child support, the trial
court is to distribute the guns inadvertently left out of the
property distribution and adjust the settlement accordingly.
12 There was no evidence presented that Ann physically
abused Richard. Whether her verbal abuse toward and denigration
of Richard in Elizabeth's presence is "domestic violence" or
"violence between the parents"is debatable. However, for the
purpose of this dissent I accept that such conduct constitutes