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Hayes v. Hayes (9/6/96), 922 P 2d 896
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NOTICE: This opinion is subject to 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, Alaska 99501; phone (907) 264-0607; fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
ALLAN MAYNARD HAYES, )
) Supreme Court No. S-6624
Appellant, )
) Superior Court No.
v. ) 1WR-92-227 DR
)
LIDIA RODEWALD HAYES, ) O P I N I O N
)
Appellee. ) [No. 4397 - September 6, 1996]
______________________________)
Appeal from the Superior Court of the State of
Alaska, First Judicial District, Wrangell,
Larry C. Zervos, Judge.
Appearances: Fred W. Triem, Petersburg, for
Appellant. Mary E. Guss, Ketchikan, for
Appellee.
Before: Compton, Chief Justice, Rabinowitz,
Matthews, and Eastaugh, Justices, and
Carpeneti, Justice pro tem. [Moore, Justice,
not participating.]
RABINOWITZ, Justice.
I. INTRODUCTION
Allan Hayes and Lidia Hayes were divorced in August of 1993.
Allan appeals the superior court's award of custody over two
children, Lexie and Isaac. He also appeals the superior court's
refusal to order Lidia to repay money that she borrowed from the
children's Permanent Fund Dividends.
II. FACTS AND PROCEEDINGS
Allan and Lidia commenced living together in the summer of
1984. They were married on June 21, 1986, and separated in March,
1992. In February of 1994, trial was held on the issues of custody
of the children and property distribution. In this appeal, Allan
Hayes is primarily challenging the superior court's custody
determination.
There are two children involved in this case. Isaac
Hayes is Lidia's son and Allan's stepson and has lived with Lidia
and Allan since he was three years old. He is currently fifteen
years old. Although Allan apparently made some efforts to
officially adopt Isaac, this never actually happened. Lexie Hayes
is the daughter of Allan and Lidia. She is currently nine years
old.
Originally, under temporary orders, the parties shared
physical custody of the two children. Lidia was to have custody of
the children during the week and Allan was to have custody on the
weekends. However, since Lidia had decided to move away from
Wrangell, where the family had resided, the superior court's final
order granted physical custody of both children to Lidia during the
entire school year and to Allan during the summers and some portion
of the Christmas holidays.
Allan's arguments concerning the custody award are two-
fold. First, he asserts that the superior court should not have
required him to prove that awarding primary custody of Isaac to
Lidia would be detrimental to Isaac. The superior court required
him to make this showing based only on the fact that Allan is not
the biological father of Isaac. His second contention is that the
superior court failed to properly consider the ramifications of
moving the children away from their home in Wrangell in reaching
its custody decision.
At trial, Lidia testified that she "borrowed"$4,000 of
the children's Permanent Fund Dividends and had orally agreed with
the children to repay them. Allan appeals the superior court's
refusal to order Lidia to repay the $4,000 she borrowed from the
two children.
III. DISCUSSION
A. The Superior Court's Holdings
In its conclusions of law, the superior court observed:
Alaska law acknowledges a preference for
the biological parent in custody disputes.
Turner v. Pannick, 540 P.2d 1051, 1053 (Alaska
1975). However, a non-parent may be awarded
custody of a child if the non-parent can show
that the parent is unfit, has abandoned the
child, or that the child's welfare requires
that a non-parent receive custody. Id. at
1055. In Turner, the Alaska Supreme Court
held that "welfare of the child"required the
non-parent to show that it would be clearly
detrimental to the child to permit the
biological parent to have custody. Id. at
1054. The burden of proving this detriment is
on the non-parent. Britt v.Britt, 567 P.2d
308, 310 (Alaska 1977).[ (EN1)]
The superior court then concluded that "Allan has not shown that
placement of Isaac with Lidia during the school year will be
clearly detrimental to his welfare."
Allan argues that a step-parent who has borne full
parental responsibilities is entitled to equal treatment in a child
custody dispute with a biological parent. More particularly, Allan
asks us to overrule Turner v. Pannick, 540 P.2d 1051 (Alaska 1975)
(non-parent has the burden of proving that parent is unfit, has
abandoned the child, or that the welfare of the child requires that
a non-parent receive custody) and Britt v. Britt, 567 P.2d 308
(Alaska 1977) (non-parent has the burden of proving that parental
custody would be clearly detrimental to the child). Allan's
primary contention is that according a biological parent a
preference over a step-parent who has not adopted the child
violates the equal protection provisions of the Constitutions of
both the United States and Alaska.
Given the superior court's alternative findings of fact,
conclusions of law, and rationale for its award of primary physical
custody of the two minor children to Lidia, we find it unnecessary
to address Allan's attacks on the preference heretofore accorded a
parent in custody disputes with a non-parent. (EN2)
B. Best Interests Test (EN3)
The superior court concluded:
If the court is wrong about the standard to be
employed in this case, the same decision would
be made if the best interests of the children
test were employed. Although both parents are
good parents and both contributed in
significant ways to the betterment of their
children, the court believes that a review of
the statutory factors tips in favor of Lidia.
Our review of the superior court's findings of fact,
conclusions of law, and the record in this case persuades us that
the superior court did not abuse its discretion in determining that
Lidia should be awarded primary physical custody of the two
children.
Allan argues that the superior court erred in not
properly considering the significance of Lidia's proposal to move
the two children from Wrangell, where they were both raised, if she
received physical custody. Allan observes that "the children have
an established custodial environment in Wrangell, where they have
extended family, friends, and teachers." Allan's contentions that
the superior court did not properly consider this factor, however,
is without merit.
Review of the superior court's findings of fact and
conclusions of law indicates that the superior court did consider
the "stability and continuity both children have in Wrangell." The
superior court concluded:
The only other relevant factor is the
stability and continuity both children have in
Wrangell. The importance of this factor is
clear. Evans v. Evans, [869 P.2d 478, 481
(Alaska 1994)]. In many ways this case comes
down to balancing Isaac's needs and
preferences against the upset that may be
caused by a new home and school. Although
applying the best interests standard in the
case is very difficult because both parents
offer so much and the distinctions between
them are so fine, in the end the court
believes Isaac's emotional needs, his
dependency on Lidia and his preference are the
most important factors. The court in some
ways has a safety net here. Given the
maturity and ability to communicate
demonstrated by these parents, if Isaac does
have extreme difficulty, the court does not
doubt that these parents will agree that Isaac
should return to Wrangell. Finally, the court
has placed great emphasis on the fact that
what is at issue here is simply which parent
has the children for the winter months. Allan
will continue to play an important and
consistent role in Isaac's life. The only
real problem then is the change of schools.
While this is an important concern, the court
is convinced that Isaac has the intelligence
to handle the transition and that the
continuity and stability offered by his
relationship with Lidia is more important than
continuity of a geographic location or school.[
(EN4)]
Based on our review of the record, we hold that it was
not an abuse of discretion for the superior court to decide that
the importance of keeping the children in Wrangell was outweighed
by other competing relevant considerations in the case.
Allan's ancillary argument, that a parent seeking to move
the children away from their previous home should be required to
make a showing, by clear and convincing evidence, that such a move
is in the children's best interests, is contrary to this court's
decisions. In McQuade v. McQuade, 901 P.2d 421 (Alaska 1995), we
had occasion to address the appropriate standards to be applied
where one parent chooses to move out of state. In reviewing the
superior court's custody determination, we alluded to our decision
in House v. House, 779 P.2d 1204, 1208 (Alaska 1989):
First, we considered the best interests of the
children in light of the criteria in AS
25.24.150(c) and concluded that the record
supported the trial court's findings that
remaining in the custody of the parent who was
moving would be in the children's best
interests. [House, 779 P.2d] at 1208.
Second, we noted that "[m]ost states permit
custodial parents to move out of state with
their children if there is a legitimate reason
for the move." Id. We then concluded that
the "decision of the family to move to
[California] was based upon a valid reason,
that is, a reason which was not primarily
motivated by a desire to make visitation . . .
more difficult." Id. Thus, in making a
custody determination where the existing
custodial parent chooses to move out of state,
a court must consider the best interests of
the children by applying the criteria in AS
25.24.150(c), and in so doing should consider
whether there is a legitimate reason for the
move.
McQuade, 901 P.2d at 423-24 (footnote and citation omitted).
We further stated:
We have consistently avoided mandating
rigid rules for making custody determinations.
See, e.g., Nichols v. Nichols, 516 P.2d 732,
736 (Alaska 1973) (stating that in custody
matters, "there is no hard and fast rule").
. . . [I]n the circumstance where the
custodial parent desires to move out of
Alaska, we consider the best interests of the
child so that such determinations are based
upon the facts and circumstances of each
particular case. We therefore conclude that
the standard set out in House is the proper
standard to apply in the factual circumstance
where one parent is planning to move out of
Alaska.
Id. at 424.
Neither House nor McQuade imposed upon the parent seeking
to move the children away from their previous home a requirement to
show, by clear and convincing evidence, that such a move is in the
children's best interests. We are not persuaded that an enhanced
burden of proof, in addition to the House and McQuade criteria,
should be adopted. (EN5)
C. Permanent Fund Dividends (EN6)
Allan's last argument is that it was error on the
superior court's part to refuse to order Lidia to repay some $4,000
which she borrowed from her children's Permanent Fund Dividends
(PFDs).
At trial Lidia testified that "[t]he last two years I
have taken out a loan from my kids with their dividends because I
needed to pay bills." Lidia further testified that she had a
verbal agreement with her children to repay them $2,000 each. (EN7)
During final argument, Allan's counsel requested an order "that
says Permanent Funds will go into a trust fund, not to be spent in
the meantime." In response to this request the superior court, in
its conclusions of law, provided as follows:
Allan is to apply for the children's PFD each
year that they are eligible. The PFD is to be
deposited each year in an interest bearing
account and held for the children. When each
child reaches 18 years, the money in the
account is to be turned over to the child. No
money is to be withdrawn from the accounts
until then.
Allan then moved for reconsideration of the issue of the
children's PFDs. More specifically, Allan requested that Lidia be
ordered to repay the borrowed $4,000 to the children's trust
account. In its order denying reconsideration the superior court
stated:
At the conclusion of trial, the court
ordered that Mr. Hayes apply for and deposit
the children's permanent fund dividends. The
dividends are to be deposited in interest
bearing accounts and not invaded until each
child turns eighteen. Mr. Hayes has asked the
court to reconsider the extent of this order.
He wishes the court to order that Ms. Hayes
pay back the children's permanent fund money
she borrowed during the parties' separation.
Ms. Hayes opposes this request.
The court has considered both arguments
and concludes that no modification to the
original order will be made. While it is true
that Ms. Hayes agreed to pay the money back,
that agreement is between her and the
children. Furthermore, during the parties'
separation, for the peculiar reasons already
explained in paragraph 22 of the Conclusions
of Law dated March 22, 1994, Mr. Hayes
underpaid the amount of child support actually
due. Although Mr. Hayes' underpayment was not
done in bad faith or intentionally, the fact
remains that during the separation, Ms. Hayes
paid more than her share of child care costs.
Given these factors, the court will not order
Ms. Hayes to payback [sic] the money.
Before the superior court, Allan conceded that "Alaska
law is silent or incomplete on the subject of a parent's duty to
administer their children's Permanent Fund Dividend monies." In
Lee v. Cox, 790 P.2d 1359 (Alaska 1990), one of the points in
contention in the appeal was whether the superior court abused its
discretion in ordering the mother to reimburse her son for all
Permanent Fund Dividends received on his behalf. In regard to this
contention, we said:
[Mr. Cox] properly concedes that "there
is no law in this state requiring parents to
set aside their children's permanent funds."
See, e.g., L.A.M. v. State, 547 P.2d 827, 832-
33 n.13 (Alaska 1976) (enumerating among those
"parental rights"protected by the
constitution "the right to control and manage"
a minor child's earnings and property) . . . .
Moreover, the record contains no findings by
the trial court which support [Mr. Cox's]
assertion that the parties contractually
agreed to set aside the permanent fund monies.
Id. at 1363.
Alaska Statute 43.23.005(c) provides that "[a] parent,
guardian, or other authorized representative may claim a Permanent
Fund Dividend on behalf of an unemancipated minor or an behalf of
a disabled or incompetent individual who is eligible to receive a
payment under this section." In this appeal, Allan again concedes
that the statute is silent concerning what a parent must or should
do with a dividend after it is distributed. He attempts to
distinguish Lee by noting that the record in the instant case
clearly indicates an agreement to repay the PFD monies. The
agreement Allan refers to, however, is between Lidia and the
children, not between Lidia and Allan. Although it is clear that
Lidia did promise the children that she would repay the $4,000, she
made no promise to Allan, and reached no agreement with him,
regarding repayment of those funds.
Given our holding in Lee, the superior court's
explanation for its ruling, and the legislature's silence as to
what parents must or should do with PFDs received on behalf of
unemancipated minors, we hold that the superior court did not err
in rejecting Allan's motion that Lidia be required to repay the
$4,000 in PFD monies that she borrowed.
IV. CONCLUSION
The superior court's judgment is AFFIRMED.
ENDNOTES:
1. The superior court further observed:
The Alaska Supreme Court has stated that
a non-parent who has an in loco parentis
relationship with a child may be able to show
that removing the child from their care would
constitute clear detriment to the child's
welfare. Buness [v. Gillen, 781 P.2d 985, 989
n.8 (Alaska 1989)]. In Buness, the Court held
that there was a question of fact sufficient
to defeat summary judgment that clear
detriment to the child's welfare would result
if the non-parent who had been the primary
caretaker and father-figure to a child for ten
years was denied custody. Id.
The underlying rationale in awarding the
psychological parent custody in these situa-
tions is that a break with the psychological
parent would be more traumatic to the child
than a break with the natural parent. Id.
(citing Doe v. Doe, 399 N.Y.S.2d 977, 982
(N.Y.Sup.Ct. 1977).
2. This makes it unnecessary for us to reach Allan's argument
concerning the constitutionality of according a parent a preference
in custody disputes with a non-parent. Additionally, we find
Allan's arguments pertaining to equitable adoption and alleged
gender bias on the part of the superior court against fathers (or
against step-fathers) to be without merit.
3. The superior court is vested with broad discretion making
child custody determinations. Gratrix v. Gratrix, 652 P.2d 76, 79
(Alaska 1982). As we have stated:
This court will reverse the superior court's
resolution of custody issues only if this
court is convinced that the record shows an
abuse of discretion or if the controlling
factual findings are clearly erroneous. Abuse
of discretion is established if the trial
court considered improper factors or failed to
consider statutorily-mandated factors, or
improperly weighted certain factors in making
its determination.
McQuade v. McQuade, 901 P.2d 421, 424 n.9 (Alaska 1995) (citations
omitted).
4. In its conclusions of law, the superior court decided that
[t]he decision concerning Lexie is much less
difficult. Both parents are equally qualified
for custody during the school year. There is
very little difference between them. Given
the expert's, the GAL's, Isaac's and the
parents' firm opinions that Lexie should not
be separated from her brother, placement with
Lidia during the school year is the only
option.
5. Moreover, we do not read the House and McQuade criteria as
requiring the custodial parent to show, under any standard of
proof, that the move proposed is in the children's best interests.
Rather, the showing must be that it is in the children's best
interests to remain in the custody of the present custodial parent,
given the proposed move. See House, 779 P.2d at 1208.
6. None of the relevant facts are disputed. All that remains to
be determined is the legal implications of these facts. This is a
question of law, which we review de novo. Langdon v. Champion, 745
P.2d 1371, 1372 n.2.
7. In response to a question by Allan's counsel regarding whether
Lidia would agree to placement of the children's PFDs in a separate
savings account for their college education, Lidia responded that
she would agree to such a proposal in regard to future PFDs
received on the children's behalf.
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