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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Van Sickle v. McGraw (04/28/2006) sp-6007
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) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| JENNIFER VAN SICKLE, | ) |
| ) Supreme Court No. S- 11725 | |
| Appellant, | ) |
| ) Superior Court No. 3AN-03-6951 CI | |
| v. | ) |
| ) O P I N I O N | |
| JOSHUA McGRAW, | ) |
| ) No. 6007 - April 28, 2006 | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Mark Rindner, Judge.
Appearances: Gayle J. Brown, Anchorage, for
Appellant. Terry C. Aglietti, Aglietti,
Offret & Woofter, Anchorage, for Appellee.
Christine McLeod Pate, Sitka, Alaska Network
on Domestic Violence and Sexual Assault Legal
Advocacy Project, for Amicus Curiae, Alaska
Network on Domestic Violence and Sexual
Assault. Mark Regan and Michael L.
Silverman, Alaska Legal Services Corporation,
Anchorage, for Amicus Curiae A.K. and D.R.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
EASTAUGH, Justice.
I. INTRODUCTION
Jennifer Van Sickle challenges the superior courts
grant of primary physical custody of her daughter to the childs
father, Joshua McGraw. Her appeal raises two main issues:
whether the 2004 amendments to the child custody statute, AS
25.24.150, apply to this case and whether the superior court
abused its discretion in awarding custody to Joshua. We conclude
that the amendments do not apply here because the evidence in
this case had already closed by the date the amendments became
effective. We also conclude that the superior court did not
abuse its discretion by awarding custody to Joshua. We therefore
affirm the superior courts decision.
II. FACTS AND PROCEEDINGS
Joshua McGraw and Jennifer Van Sickle f/k/a Weed are
the parents of one child, born in Sitka in July 2000. Joshua and
Jennifer were never married. They separated within months of
their childs birth and for two years shared custody equally. In
August 2002 the parties entered into an agreement to alternate
custody every eighty-nine days. The following month Jennifer
moved to Michigan, where she resides with her husband, Jason Van
Sickle. Joshua lives in Sitka. For two years the child moved
between Michigan and Alaska per the agreement.
In April 2003 Jennifer filed a petition in Michigan for
sole physical custody of the child. The Michigan court dismissed
her petition for lack of jurisdiction under the Uniform Child
Custody Jurisdiction Act. Both the Michigan and Alaska trial
courts agreed that Alaska has jurisdiction over the dispute
because Alaska is the childs home state as that term is used in
each states respective child custody jurisdiction act.
In response to Jennifers Michigan petition, Joshua
filed suit in Alaska to secure primary custody. Trial was held
on June 28 and 29, 2004 and written closing arguments were
submitted to the court on July 28 and August 3, 2004. On July 1,
2004 Senate Committee Substitute for Committee Substitute House
Bill 385 (H.B. 385) took effect.1 House Bill 385 amended AS
25.24.150, changing how courts must consider the effect of
domestic violence when ruling on child custody disputes.2 Among
other things, the amendment created a rebuttable presumption that
a parent who has a history of perpetrating domestic violence may
not be awarded custody of a child.3 On August 9, 2004 the
superior court asked the parties to submit supplemental briefing
on the applicability of the amended version of AS 25.24.150.
Having reviewed the additional briefing, the superior
court issued a separate order concluding that the amendments do
not apply to this case. The court also concluded that even if
they did apply, Joshua did not have a history of perpetrating
domestic violence, and that if he did have such a history, he had
overcome the presumption against custody.
In its written decision, the superior court awarded
primary physical custody to Joshua. The court, although
recognizing that both Jennifer and Joshua are good parents who
share loving relationships with the child, found it to be in the
childs best interests to live with Joshua during the school year.
Two factors weighed heavily in the courts decision.
First, applying the former statute, the court found that Joshua
was better at achieving an open and loving frequent relationship
between the child and the other parent. The court found it
disturbing that Jennifer initiated the Michigan lawsuit; the
court considered her lawsuit an effort to avoid the shared
custody agreement that the parties had entered into in August
2002 before [Jennifer] departed for Michigan. The court also
found that Jennifer seems to have some resentment towards
[Joshua], which he does not have towards her. In support of that
finding, the court noted a 2003 incident in which Jennifer
contacted Sitka police and falsely alleged that Joshua used
drugs.
Second, the court considered it pertinent that the
child has extended paternal and maternal family in Sitka.
Jennifer has only extended family through her marriage in
Michigan. The court also observed that the childs Tlingit
descent was more likely to be recognized in Sitka than in
Michigan.
The court noted that both parties had acted violently
during the relationship. In September 2001 Joshua was arrested
and charged with Assault III, two counts of Assault IV, Burglary
I, Theft III, and two counts of Criminal Mischief III. All
charges except the criminal mischief charges were dropped.
Joshua attended a batterers intervention program as part of his
probation. In October 2003 Joshua left an obscene message on the
Van Sickles answering machine in Michigan. The report of the
court-appointed investigator noted police reports show[ing]
arguing, hitting, throwing items, destruction of property, and
other childish, immature behavior on the part of both parties.
The superior court did not find these acts of domestic violence
dispositive. The court stated:
No DV order has ever been sought or issued in
this case. Ms. Van Sickle is not afraid of
Mr. McGraw and generally holds her own in the
relationship. The agreements she has made in
this case concerning the sharing of custody,
or the actions she has taken that are
referenced in this Courts findings regarding
her willingness to allow an open loving
relationship between [the child] and Mr.
McGraw were not in any manner influenced by
domestic violence that previously had
occurred between the parties.
The superior court found joint legal custody and unsupervised
visitation appropriate. Both parties had agreed that shared
custody is workable and appropriate. The court therefore found
it in the childs best interest to award primary physical custody
to Joshua.
Jennifer appeals. She argues that the superior court
erred by not applying the amended version of AS 25.24.150 here,
and she argues that even if the amendments do not apply, the
court erred in the way it applied former AS 25.24.150.
III. DISCUSSION
A. Standard of Review
Whether a statutory amendment applies to a case in
progress raises a legal question which we review applying our
independent judgment.4 If the application question also turned
on a fact finding, we would review it for clear error.5
Trial courts are vested with broad discretion in
determining child custody.6 We will disturb a trial courts
resolution of child custody issues only if we are convinced that
the record shows an abuse of discretion or if controlling
findings of fact are clearly erroneous.7 A trial court abuses
its discretion if it considers improper factors in making its
custody determination, fails to consider statutorily mandated
factors, or assigns disproportionate weight to particular factors
while ignoring others.8 We will hold that a trial court clearly
erred only when left with a definite and firm conviction that the
trial court has made a mistake.9
B. The 2004 Amendments to AS 25.24.150 Do Not Apply in
this Case.
The superior court determined that it would be unlawful
to apply the amended statute to this case because the amended
statute does not expressly require that it be given retroactive
effect and because the amended statute affects substantive
rights. We agree with the superior courts conclusion that the
amended statute does not apply to this case, but for different
reasons.10 The amendments to AS 25.24.150 took effect on July 1,
2004.11 The trial in this case ended on June 29, 2004. The
evidence was therefore closed before the effective date of the
amended statute. Neither party asked to reopen the evidence or
present further testimony, although the superior court asked for
supplemental briefing on the applicability of the amendments.
We conclude that the amended version of AS 25.24.150
does not apply to this case because the evidence closed before
the effective date of the statute. The superior court therefore
did not err by analyzing this case under former AS 25.24.150.
C. The Superior Court Did Not Abuse Its Discretion in
Awarding Primary Physical Custody to Joshua.
The superior court determined that, applying the best-
interest factors in former AS 25.24.150(c), primary physical
custody should be awarded to Joshua.12 Jennifer argues that the
superior court erred in applying two of the statutory factors AS
25.24.150(c)(5) and (c)(6). Jennifer argues that the court erred
in finding that Joshua was better at achieving an open and loving
relationship between the child and the other parent. And she
argues that the superior court erred in finding that Sitka is a
better home for the child than Michigan in terms of extended
family and cultural opportunities.
The superior court determined that Joshua is better
than Jennifer at achieving an open and loving frequent
relationship between the child and the other parent. Jennifer
argues that this finding was based solely on the fact that
Jennifer filed a Michigan petition for custody. She argues that
the court impermissibly faulted her for starting the litigation
process in Michigan when Joshua also started litigation in
Alaska.
Jennifers argument is flawed for two reasons. First,
the superior court relied on more than the Michigan filing in
making its determination regarding Jennifers ability to foster an
open relationship between the child and Joshua. The superior
court noted Jennifers resentment towards [Joshua], citing the
fact that she falsely accused him of using drugs in retaliation
for not allowing her to spend the childs birthday with the child.
Second, Joshuas filing was in response to Jennifers. The record
does not establish that he would have filed his Alaska complaint
even if she had not filed suit in Michigan. Jennifer has not
demonstrated that the superior court abused its discretion in
determining that Joshua was better at fostering an open
relationship between the child and the other parent than
Jennifer.
The superior court also found that Sitka is a better
home for the child than Michigan in terms of extended family and
cultural support. Jennifer argues that the courts finding
violates our holding in Moeller-Prokosch v. Prokosch.13 In that
case Moeller-Prokosch appealed a decision awarding primary
physical custody of her son to the father after assuming that
Moeller-Prokosch would relocate out of Alaska.14 We reversed
because in considering the fifth best interest factor, the trial
court focused too narrowly on geographic stability and had not
considered each parents respective ability to maintain stable and
satisfactory relations between themselves and the child.15 We
also criticized the trial courts ruling because it only
considered the effect of the childs separation from his father if
his mother moved with the child without considering the effect of
the childs separation from his mother if the mother moved without
him.16 We concluded that the trial court must conduct a symmetric
consideration of the consequences to [the child] both if [the
mother] leaves with him and if she leaves without him.17
Jennifers reliance on Moeller-Prokosch is misplaced.
In Moeller-Prokosch, both parents lived in Alaska and one wanted
to move away.18 In this case, Jennifer already lives in Michigan.
The child has been living with her there, off and on, for over
two years. And the superior court considered each parents
ability to maintain acceptable relations between themselves and
their daughter.19 The superior court noted that the child is in a
stable, satisfactory environment in either parents home. The
court did not, as Jennifer argues, give too little consideration
to the community . . . of the minor child in Michigan. The court
heard testimony about home environment and extended family in
both Sitka and Michigan. The court noted that Jason Van Sickle
has extended family in Michigan, but concluded that it is more
significant that a biological parent has extended family in the
area where the child may reside than the fact that a spouse of a
parent has such extended family. Although that conclusion might
not hold true in all situations, it was not an abuse of
discretion to reach it here, given the courts findings regarding
the childs Tlingit heritage and her extended paternal and
maternal family in Sitka.
Jennifer also argues that the superior court failed to
give symmetric consideration of the consequences to the child of
the custody determination. The superior courts findings of fact
do not include findings about the impact on the child of being
separated from either parent. But at the time of trial, the
child had already been separated from each parent for three
months at a time for over two years. The court noted that this
arrangement had worked remarkably well under the circumstances.
Because the parties former agreed-upon arrangement resulted in
prolonged separation from each parent, and because the court
found that this arrangement had worked well, there was no reason
to consider whether separating the child from each parent for
long periods of time would be harmful. The court did not abuse
its discretion by failing to make specific findings on this
topic.
Finally, Jennifer argues that the superior court erred
when it concluded that custody with Joshua would give the child a
better chance to maintain her Tlingit heritage. Jennifer suggests
that the childs Tlingit heritage is through Jennifers family
alone. But Joshua testified at trial that his family is also of
Tlingit ancestry. The court concluded in its findings of fact
that Tlingit culture is more likely to be recognized in Sitka
than Michigan. That conclusion is reasonable; Tlingit culture is
rooted in the region surrounding Sitka.
We note that Jennifer has not argued on appeal that the
superior court erred by not considering, in the context of former
AS 25.24.150, an episode of domestic violence testified to by her
husband, Jason. Jason testified at trial about an April 2002
incident in which Joshua drove menacingly toward Jason and
Jennifer while screaming obscenities. Although Jennifer mentions
this vehicular incident in her briefing on appeal in support of
her argument that Joshua has a history of perpetrating domestic
violence, as that phrase is used in the amended version of AS
25.24.150, she does not argue in her opening brief that the
superior court erred in not considering this incident in applying
former AS 25.24.150. She addresses the issue in her reply brief,
but new issues raised in a reply brief are considered waived.20
Jennifer also failed to mention the vehicular incident in her
trial brief, in her written closing argument at trial, and in her
motion for reconsideration. She therefore also failed to
preserve the argument below.21
IV. CONCLUSION
For these reasons, we AFFIRM the superior courts grant
of primary physical custody to Joshua.
_______________________________
1 Ch. 111, 6, SLA 2004.
2 Compare AS 25.24.150(c)(6), (g), (h) with former AS
25.24.150(c).
3 AS 25.24.150(g), added in 2004, provides:
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.
A parent has a history of perpetrating domestic violence if the
court finds that during one incident of domestic violence, the
parent causes serious physical injury or the court finds that the
parent has engaged in more than one incident of domestic
violence. AS 25.24.150(h).
The presumption [against custody] may be
overcome by a preponderance of the evidence
that the perpetrating parent has successfully
completed an intervention program for
batterers, where reasonably available, that
the parent does not engage in substance
abuse, and that the best interests of the
child require that parents participation as a
custodial parent because the other parent is
absent, suffers from a diagnosed mental
illness that affects parenting abilities, or
engages in substance abuse that affects
parenting abilities, or because of other
circumstances that affect the best interests
of the child.
AS 25.24.150(h).
4 See Rockstad v. Erikson, 113 P.3d 1215, 1219 (Alaska
2005) (holding that questions of law are reviewed de novo); Rush
v. State, Dept of Natural Res., 98 P.3d 551, 553 (Alaska 2004)
(holding that question of potential retroactive application of
statute is reviewed de novo).
5 See Rockstad, 113 P.3d at 1219.
6 Dingeman v. Dingeman, 865 P.2d 94, 96 (Alaska 1993).
7 Silvan v. Alcina, 105 P.3d 117, 120 (Alaska 2005).
8 Id. (quoting Borchgrevink v. Borchgrevink, 941 P.2d
132, 134 (Alaska 1997)).
9 Dingeman, 865 P.2d at 96.
10 We may affirm a judgment on any grounds that the record
supports, even grounds not relied on by the superior court.
Snyder v. Am. Legion Spenard Post No. 28, 119 P.3d 996, 1001
(Alaska 2005). We express no opinion about whether the amended
statute should be given retroactive effect or whether applying
the amended statute raises procedural due process issues.
11 Ch. 111, 6, SLA 2004.
12 Before the 2004 amendments became effective, former AS
25.24.150(c) required the court to consider the following factors
in determining custody in accordance with the childs best
interests:
(1) the physical, emotional, mental,
religious, and social needs of the child;
(2) the capability and desire of each parent
to meet these needs;
(3) the childs preference if the child is of
sufficient age and capacity to form a
preference;
(4) the love and affection existing between
the child and each parent;
(5) the length of time the child has lived
in a stable, satisfactory environment and the
desirability of maintaining continuity;
(6) the desire and ability of each parent to
allow an open and loving frequent
relationship between the child and the other
parent;
(7) any evidence of domestic violence, child
abuse, or child neglect in the proposed
custodial household or a history of violence
between the parents;
(8) evidence that substance abuse by either
parent or other members of the household
directly affects the emotional or physical
well-being of the child;
(9) other factors that the court considers
pertinent.
13 Moeller-Prokosch v. Prokosch, 99 P.3d 531 (Alaska
2004).
14 Id. at 533.
15 Id. at 534-35.
16 Id. at 535.
17 Id. at 535-36.
18 Id. at 533.
19 See id. at 534-35.
20 See Crittell v. Bingo, 83 P.3d 532, 536 n.19 (Alaska
2004) (stating that reply brief may raise no contentions not
previously raised in either the appellants or appellees briefs )
(quoting Alaska R. App. P. 212(c)(3)).
21 See Brandon v. Corr. Corp. of Am., 28 P.3d 269, 280
(Alaska 2001).
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