| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
|
You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Mallory D. v. Malcolm D. (12/28/2012) sp-6740
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, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
MALLORY D., )
) Supreme Court No. S-14436
Appellant, )
) Superior Court No. 3PA-09-01846 CI
v. )
) O P I N I O N
MALCOLM D., )
) No. 6740 - December 28, 2012
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Palmer, Eric Smith, Judge.
Appearances: Mallory D., pro se, Palmer, Appellant. Tara
Logsdon, Golter & Logsdon, P.C., Palmer, for Appellee.
Before: Fabe, Chief Justice, Carpeneti, Winfree, and
Stowers, Justices.
STOWERS, Justice.
I. INTRODUCTION
Malcolm D. and Mallory D.1 were married and had three children, Jason,
Brooke, and Megan. In August 2009 Malcolm and Mallory filed a petition for
dissolution of marriage. The parties agreed to joint legal custody and shared physical
1 Pseudonyms have been used throughout this opinion to protect the identity
of the parties.
----------------------- Page 2-----------------------
custody. In May 2010 Mallory moved to modify custody; she wanted sole legal and
primary physical custody of Brooke and Megan, as well as additional visitation with Jason.
Mallory asserted a change in circumstances because Brooke reported being singled out
among the children for punishment and Malcolm being mean to her. Malcolm opposed,
contending there was no change in circumstance to warrant custody modification and
that the modification would not be in the best interests of the children.
The superior court found that there was a change in circumstance regarding
Brooke and Megan but denied Mallory's motion to modify custody for the daughters.
The court found that Malcolm and Mallory had each committed two acts
of domestic violence during the marriage but that neither parent was less likely than the
other to perpetrate domestic violence in the future.2 The superior court concluded that
under these circumstances, the presumption in AS 25.24.150(g), which would preclude
a parent from obtaining legal or physical custody of the children if that parent had a
history of domestic violence against the other parent, did not apply to either parent in this
case. The superior court fashioned the custody decree taking into consideration the best
interests of the children notwithstanding the requirements of AS 25.24.150(h).
2 The superior court found that "neither party is less likely to [perpetrate] the
violence than the other party." The court was attempting to follow the language of
AS 25.24.150(i)(1) which states in pertinent part:
(i) If the court finds that both parents have a history of
perpetrating domestic violence under (g) of this section, the
court shall either
(1) award sole legal and physical custody to the parent
who is less likely to continue to perpetrate the violence
and require that the custodial parent complete a
treatment program . . . .
-2- 6740
----------------------- Page 3-----------------------
We conclude that when both parents are found to have a history of domestic
violence and neither parent is more likely to perpetrate violence than the other, the
superior court has the discretion to determine that the presumption set forth in
AS 25.24.150(g) does not apply. We further conclude that the superior court did not
clearly err when making its factual findings and did not abuse its discretion when it
weighed the best interest factors under AS 25.24.150(c) and determined that custody
should not be modified.
II. FACTS & PROCEEDINGS
Malcolm D. and Mallory D. were married in 1993. They have three minor
children, Jason, Brooke, and Megan. In August 2009 Malcolm and Mallory filed a
petition for dissolution of marriage. In their petition, they checked the "yes" box for the
question, "Has there been any domestic violence during the marriage (whether or not a
complaint was filed)?" The parties agreed to joint legal custody and shared physical
custody on a week on/week off basis.
Around September 2009 Malcolm starting dating Holly, a family friend,
and she and her daughter moved in with Malcolm and his children in November 2009.
Holly's daughter had been friends with Brooke before the dissolution.
Master David L. Zwink held a hearing on the dissolution petition in October
2009 at which both Malcolm and Mallory appeared pro se. The parties later submitted
a document updating their custody arrangement so that Jason would spend 70% of his
time with Malcolm and 30% of his time with Mallory. In January 2010 the superior
court approved the master's recommended decree of dissolution of marriage and
memorialized the custody arrangement in a child support order.
In May 2010 Mallory moved to modify custody. She sought sole legal and
primary physical custody of Brooke and Megan, as well as additional visitation with
Jason to reach the previously agreed-upon 70/30 split. In her affidavit Mallory
-3- 6740
----------------------- Page 4-----------------------
chronicled several text message exchanges between herself and Brooke in which Brooke
stated that she was singled out among the children (including Holly's daughter) and
punished, and that Malcolm was mean to her or yelled at her. Malcolm contended there
was no change in circumstance to warrant custody modification and that the modification
would not be in the best interests of the children. In his affidavit Malcolm stated that he
had a close relationship with his children and the conflict with Brooke stemmed from her
dislike of chores and her complaints to her mother about Malcolm's insistence that she
do them.
A custody investigator interviewed Malcolm and Mallory, as well as Jason,
Brooke, and Megan, and filed a limited custody investigation report in November 2010.
The report explained, "This brief investigation and report should not be considered a
substitute for the more in-depth analysis that is required to develop recommendations for
long-term placement in the parties' divorce or custody action." The custody
investigator's assessment stated:
Based on the children's reports there appears to be some
conflict between Father and [Brooke] which appears to be
typical of many parents and their adolescent children. In a
family where there is a divorce, children can easily learn to
manipulate their parents when they don't like the punishment
they are receiving. [Brooke] appears to be doing this; running
to Mother when she does not like what happens at Father's.
While there is nothing inappropriate about [Brooke]
confiding in her mother, the problem arises when there is a
perceived alignment with the child by one parent against the
other parent. This can serve to undermine the other parent's
authority and relationship with the child. Like all children,
[Brooke] needs to learn to resolve conflict and deal with the
consequences of her actions.
On April 4, 6, and May 31, 2011, Superior Court Judge Eric Smith held a
bench trial on two issues - the custody modification and the division of marital assets,
-4- 6740
----------------------- Page 5-----------------------
the family home.3 The bulk of the testimony was about the parents' relationship with
Brooke, who had just turned 13.
Because Mallory testified that Malcolm committed domestic violence, the
court and the attorneys for the parties spent significant time discussing AS 25.24.150(g)
which states, "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."4 The court stated that because this rebuttable
presumption is inflexible, if it found that Malcolm had a history of committing domestic
violence in the marriage, Mallory would have to be awarded sole legal and physical
custody of all three children (as opposed to Jason staying with his father), and Malcolm
would have to enroll in a batterer's program. Malcolm also testified to two instances of
domestic violence by Mallory when Mallory slapped him. The court discussed how the
statute was silent if the court were to find that both Malcolm and Mallory had a history
of committing domestic violence but neither was likely to continue to perpetrate the
violence.5
3 Mallory does not appeal the court's decision to deny her motion to require
Malcolm to buy out her interest in the home.
4 AS 25.24.150(h) defines a "history of perpetrating domestic violence": "A
parent has a history of perpetrating domestic violence under (g) of this section if the
court finds that, during one incident of domestic violence, the parent caused serious
physical injury or the court finds that the parent has engaged in more than one incident
of domestic violence."
5 AS 25.24.150(i) provides:
If the court finds that both parents have a history of
perpetrating domestic violence under (g) of this section, the
(continued...)
-5- 6740
----------------------- Page 6-----------------------
The court issued an order finding that there was a change in circumstances
regarding Brooke and Megan but denying Mallory's motion to modify custody for the
daughters. It granted Mallory's motion regarding visitation with Jason. In its 19-page
order the court addressed each of the custody criteria outlined in AS 25.24.150(c).6 It
5(...continued)
court shall either (1) award sole legal and physical custody to
the parent who is less likely to continue to perpetrate the
violence and require that the custodial parent complete a
treatment program; or (2) if necessary to protect the welfare
of the child, award sole legal or physical custody, or both, to
a suitable third person if the person would not allow access
to a violent parent except as ordered by the court.
6 Alaska Statute 25.24.150(c) states:
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
(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 child's 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 willingness and ability of each parent to facilitate and
encourage a close and continuing relationship between the
(continued...)
-6- 6740
----------------------- Page 7-----------------------
found that Malcolm and Mallory "have different expectations for the children and
different disciplinary styles" and that tension existed between Brooke and Malcolm but
was improving. The court also addressed the domestic violence issue, finding that
Malcolm and Mallory had each committed two acts of domestic violence during the
marriage. The court explained:
Since both parties committed two acts of domestic violence
on the other, they each have a history of domestic violence as
that term is defined by AS 25.24.150(h). Pursuant to
AS 25.24.150(i)(1), the court accordingly must evaluate
which of the parties is less likely to [perpetrate] the
violence.[7] The court finds that neither party is less likely
than the other to do so. The incidents of violence between
the parties occurred during arguments fueled by alcohol. The
relationship was strained. The court accordingly concludes
that the violence was situational, caused by the specific
6(...continued)
other parent and the child, except that the court may not
consider this willingness and ability if one parent shows that
the other parent has sexually assaulted or engaged in
domestic violence against the parent or a child, and that a
continuing relationship with the other parent will endanger
the health or safety of either the parent or the child;
(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.
7 The court found there was "absolutely no need to send the children to a
third party." See AS 25.24.150(i), quoted in footnote 4.
-7- 6740
----------------------- Page 8-----------------------
dynamic between the parties, and is not likely to recur by
either party.
. . .
AS 25.24.150(i)(1) does not address the situation before the
court, where neither party is less likely to [perpetrate] the
violence than the other party. The court concludes that under
these circumstances, the presumption set forth in
AS 25.24.150(g) does not apply to either party and hence that
the court is free to fashion a custody decree that meets the
best interests of the children notwithstanding the
requirements of AS 25.24.150(h).
As noted above, there was domestic violence in the marriage.
But because it was situational and because both parties are
unlikely to repeat these actions, the court finds that domestic
violence is not a factor that precludes the parties from sharing
custody of the girls.
Mallory filed a motion to reconsider which the superior court denied.
Mallory, acting pro se, appeals.
III. STANDARD OF REVIEW
The superior court has "broad discretion in its determination of child
custody."8 We will not set aside the superior court's child custody determination "unless
its factual findings are clearly erroneous or unless it abused its discretion."9 We will find
the trial court's underlying factual findings clearly erroneous only "when our review of
the entire record leaves us 'with a definite and firm conviction that a mistake has been
made.' "10 "The trial court's factual findings enjoy particular deference when they are
based primarily on oral testimony, because the trial court, not this court, judges the
8 Cusack v. Cusack, 202 P.3d 1156, 1158-59 (Alaska 2009).
9 Id. at 1159.
10 Millette v. Millette , 177 P.3d 258, 261 (Alaska 2008) (quoting
Dingeman v. Dingeman , 865 P.2d 94, 96 (Alaska 1993)).
-8- 6740
----------------------- Page 9-----------------------
credibility of witnesses and weighs conflicting evidence."11 "An abuse of discretion in
child custody awards occurs when 'the trial court considers improper factors, fails to
consider statutorily mandated factors, or gives too much weight to some factors.' "12
Whether the trial court applied the correct legal standard in its custody determination is
a question of law that we review de novo, "adopting the rule of law that is most
persuasive in light of precedent, reason and policy."13
IV. DISCUSSION
A. The Superior Court's Factual Findings Were Not Clearly Erroneous.
1. The domestic violence
Mallory argues that the superior court erred when it determined that both
she and Malcolm each committed two acts of domestic violence. She asserts that
Malcolm committed more than two acts and that there was no "credible evidence" that
she had committed any.
The court did not clearly err when it found that each party committed two
acts of domestic violence. Mallory testified that Malcolm had been physical with her two
times - choking her during a camping trip and similarly attacking her in their home.
Malcolm testified that Mallory slapped him on two occasions. The court acknowledged,
"It was difficult to assess the credibility of these contentions. There were no witnesses
. . . [and the] alleged violence never came up while the parties were engaging in marital
counseling with Tom Lytle." The court relied on the testimony of Dot Littleton,
11 Sheffield v. Sheffield, 265 P.3d 332, 335 (Alaska 2011) (internal quotation
marks omitted).
12 Id. (quoting Long v. Long , 816 P.2d 145, 150 (Alaska 1991)).
13 Nelson v. Nelson , 263 P.3d 49, 52 (Alaska 2011) (quoting
McQuade v McQuade , 901 P.2d 421, 423 n.3 (Alaska 1995)).
-9- 6740
----------------------- Page 10-----------------------
Mallory's therapist, to corroborate Mallory's testimony regarding the two acts that
Malcolm allegedly committed. Littleton testified that Mallory had reported these two
acts to her in their sessions.
Mallory asserts that the record supports two additional instances of
domestic violence by Malcolm because she alleges that Malcolm grabbed her arm and
pushed a coffee table across a room during an argument. Malcolm conceded in an
affidavit before the superior court that he grabbed Mallory's arm and pushed a coffee
table during this argument, but he asserts that this was not domestic violence. Mallory's
testimony at trial included the allegation that Malcolm frightened her by pushing a coffee
table, but she did not mention Malcolm grabbing her arm. Littleton also did not mention
Malcolm grabbing Mallory's arm when she described how Mallory recounted this story
during therapy.
It is the trial court's responsibility to judge the credibility of witnesses and
weigh conflicting evidence.14 The court did so in making its findings regarding whether
these confrontational incidents rose to the level of domestic violence. It was not clear
error for the court to decline to view the grabbing of the arm and pushing of the coffee
table as instances of domestic violence when some of the conflicting testimony from the
witnesses and the parties suggested the incidents were not domestic violence, or were not
contemporaneously perceived to be domestic violence.
Although Mallory testified that she had not committed any acts of domestic
violence, Malcolm testified to her twice slapping him, and Littleton testified that she had
a vague memory of Mallory admitting to pushing Malcolm during one of their therapy
sessions. Again, it was not clear error for the superior court to find that Mallory
14 See Sheffield, 265 P.3d at 335.
-10- 6740
----------------------- Page 11-----------------------
committed two acts of domestic violence because it is the trial court's responsibility to
judge the credibility of witnesses and weigh conflicting evidence. 15
2. The finding that neither party is less likely than the other to
perpetrate domestic violence
Mallory argues that it was error for the superior court to find that neither
party was less likely than the other to perpetrate violence and that the violence that had
occurred was situational. Mallory contends that the marriage counselor, Tom Lytle,
testified that Malcolm had anger problems which were made worse by drinking alcohol,
and from this Mallory argues that Malcolm was more likely than Mallory to perpetrate
domestic violence. The court acknowledged that Lytle's testimony was "concerning"
but recognized that Malcolm had been in counseling with Brooke to address his
parenting skills and that Malcolm's fiancée, Holly, "testified credibly" that there had
been no domestic violence since she and Malcolm started living together. Based on the
evidence presented, it was not clear error for the court to determine that the discrete
instances of domestic violence were situational and that "neither party is less likely" than
the other to perpetrate the domestic violence.
3. The court's characterization of Brooke as a "currently difficult
teenager"
Mallory takes issue with the superior court's passing characterization of
Brooke as a "currently difficult teenager." The court stated that Malcolm was in
counseling with Brooke "to learn the necessary tools to interact in a positive way with
a currently difficult teenager." Mallory argues that the record reflects that Brooke only
had difficulties with her father, but that her school counselor had testified that Brooke
was a nice girl.
15 See id.
-11- 6740
----------------------- Page 12-----------------------
The superior court did not clearly err when characterizing Brooke as a
"currently difficult teenager." The child custody investigator reported Jason stating that
Brooke was "sassing" Malcolm and "being rude or mean to Megan." Malcolm testified
that Brooke lied to him, which also comports with what he told the child custody
investigator. These kinds of actions would warrant a teenager being characterized as
"difficult."
4. The finding that Malcolm is taking steps to learn from his
previous parental errors
Mallory argues that the superior court misunderstood the evidence about
Malcolm's counseling efforts and that the counseling he attended with Brooke was for
Brooke's benefit, not his. She argues that it was "improper" for the court to give
Malcolm "credit" for taking steps to learn from his previous parental errors.
There is no indication that the superior court misunderstood the evidence
presented at trial. Malcolm testified that he was not in independent counseling and
acknowledged that he struggled with working on recognizing other people's emotional
needs. He testified that he had been to counseling with Brooke five to eight times and
that things were getting better between them. He described some strategies he, the
counselor, and Brooke had developed regarding Brooke's cell phone use. The superior
court did not clearly err in finding that Malcolm "is taking steps to try to learn from [his]
errors and not to repeat them" by attending Brooke's counseling sessions.16
16 We have considered Mallory's other arguments alleging that the superior
court made erroneous findings of fact, particularly with regard to Mallory's relationship
with her therapist. We conclude that the superior court did not clearly err in making
these findings, or if there was error, any error was harmless.
-12- 6740
----------------------- Page 13-----------------------
B. The Superior Court Did Not Abuse Its Discretion When It Denied
Mallory's Motion To Modify Custody.
1. The superior court's determination that both parents are
equally able to meet the needs of their children
Mallory argues that the superior court should not have determined that both
parents were equally able to meet the physical, emotional, mental, religious, and social
needs of the children under AS 25.24.150(c)(2), contending that Malcolm did not meet
the needs of the children as well as she did.17 For support Mallory points to three issues:
Megan's health; allegations that Megan got hurt while Malcolm was drunk; and
Malcolm's conflicts with Brooke.
Mallory argues that Malcolm took Megan off of a gluten-free diet "with no
medical oversight and without seeking a professional opinion." Megan was complaining
of stomach aches and headaches, and Mallory surmised it was a gluten allergy because
she has a similar allergy. Megan's pediatrician suggested trying a gluten-free diet for
two weeks. Malcolm implemented the diet for two weeks and then stopped, believing
that Megan's condition was not related to a gluten allergy but rather to irregular
movements and common headaches. There were some communication issues and
confusion between Malcolm and Mallory as to why Malcolm took Megan off the diet,
but once Malcolm received a letter from the pediatrician clarifying that the diet should
be resumed, Malcolm placed Megan back on the gluten-free diet. The court found that
the parents had an "honest disagreement" on this issue and did not find that one parent
was better suited to meet Megan's needs based on this occurrence. The court did not
clearly err in making this finding, and it was not an abuse of discretion for the court not
to weigh this occurrence against Malcolm.
17 See AS 25.24.150(c)(2), quoted in footnote 4.
-13- 6740
----------------------- Page 14-----------------------
Mallory also asserts Malcolm does not meet the needs of the children as
well as she does based on her testimony that Megan received a bruised knee from
Malcolm falling on her while drunk. There was no corroborating evidence to support
Mallory's allegation that Malcolm caused the injury, and the superior court did not
mention the incident in its order. Based on the lack of corroborating evidence and the
fact that it is the superior court's function to weigh the evidence and make credibility
determinations, it was not clear error or an abuse of discretion for the superior court to
disregard this allegation when assessing this factor.
Mallory next points to her testimony that Malcolm had been drunk when
his off-road truck rolled over while he was holding two-year-old Megan, crushing her
finger and requiring her to have surgery. Malcolm testified that he was not drunk when
the accident occurred. The superior court did not mention this incident in its order,
either. Again, it was not clear error or an abuse of discretion to omit making a finding
on this allegation in the absence of corroborating evidence.
Finally, Mallory points to the conflict between Brooke and Malcolm to
argue that Malcolm does not meet the needs of the children as well as she does. The
focus of the testimony about Brooke was on her emotional and social needs. The
superior court found that "while each parent has not behaved as appropriately as they
should have behaved, they nevertheless are equally capable of meeting [Brooke's]
emotional and social needs." This finding was not clearly erroneous. The court
described Brooke, who had just turned 13, as "presenting the many challenges often
presented by girls of that age." This finding was supported by the custody investigator's
report which described Brooke's conflicts with her father about chores, the use of her
phone, how she dressed, and how much makeup she wore. Malcolm acknowledged at
trial that he had made several parenting mistakes. The court found that "much of the
tension that exists between Brooke and her father is due to [Malcolm's] actions."
-14- 6740
----------------------- Page 15-----------------------
However, the court went on to address Mallory's tendency to take Brooke's side in any
conflict with Malcolm, which was demonstrated in the text message exchanges
chronicled in Mallory's affidavit. The court characterized some of Mallory's texts as
"almost derisive" of Malcolm. The court also found that Malcolm "intellectually, at
least, . . . understands that changes need to be made" as indicated by his testimony of
attending counseling with Brooke, while Mallory "by contrast, does not seem to
understand how she has contributed to the problem." Based on the evidence, it was not
clear error or an abuse of discretion for the court to consider each parent's shortcomings
and determine that the parents are equally capable of meeting Brooke's emotional and
social needs.
2. The superior court's consideration of Brooke's preference to
live with Mallory
Mallory argues that the superior court did not properly weigh Brooke's
desire to live full-time with Mallory.18 The court acknowledged that Brooke wanted to
live with Mallory but stated that it "will not give much weight to Brooke's preference,
however, because she is young, does not appear to be more mature than her age, and
prefers her mother in substantial part because her mother has rather uncritically taken her
side in her dispute with her father."
The court did not abuse its discretion by not giving Brooke's preference
much weight. Brooke had just turned 13 when the court made the findings. We have
held that "a teenager's preference can be a deciding factor because, while a young child's
preferences are often unreliable, 'a relatively mature teenager's reasoned preference is
not so lightly to be disregarded.' "19 However, the trial court found that Brooke was not
18 See AS 25.24.150(c)(3), quoted in footnote 4.
19 Sheffield, 265 P.3d at 335 (quoting Yvonne S. v. Wesley H., 245 P.3d 430,
(continued...)
-15- 6740
----------------------- Page 16-----------------------
relatively mature when she expressed her preference and that she "prefer[red] her mother
in substantial part because her mother has rather uncritically taken her side in her dispute
with her father." The superior court did not abuse its discretion when assessing this
factor.
3. The superior court's assessment that continuity favors
continuing the present shared custody arrangement
Mallory argues that the superior court improperly determined that the
continuity factor "favors continuing the present shared custody arrangement." Under
AS 25.24.150(c)(5), the superior court, in determining the best interests of the child
"shall consider . . . the length of time the child has lived in a stable, satisfactory
environment and the desirability of maintaining continuity." Mallory asserts that
granting her primary custody would not interrupt the children's stability because "[t]he
record reflects that mother has been the primary physical parent of all three children their
entire lives." However, Malcolm insists that nothing less than " 'shared custody' had
existed while the marriage was intact."
The superior court did not clearly err or abuse its discretion by treating both
parents as though they had been equally involved in child rearing, and the record
provides support for such a determination.20 Mallory further argues that the children
would not experience a change in continuity or stability if she received primary physical
custody because they would continue "in the same schools, with the same teachers, the
same neighborhoods, the same group of friends." However, "[t]he continuity factor has
two components: maintaining geographic continuity and maximizing relational
19(...continued)
433 (Alaska 2011)).
20 For example, the custody investigation report stated, "[Father] has taught
[the girls] how to hunt and fish as well as modeling a good work ethic."
-16- 6740
----------------------- Page 17-----------------------
stability."21 Indeed, "stability is often a function of parental attitude and not of
geography."22 While their relationships with their friends and teachers might stay the
same, granting Mallory primary physical custody could cause instability in Megan's and
Brooke's relationship with their father, and with their brother Jason, who is in the
custody of Malcolm 70% of the time. The court did not clearly err or abuse its discretion
by finding that the continuity factor slightly favored the current custody arrangement.
4. The superior court's determination that Malcolm was less at
fault with regard to fostering a relationship with the other
parent
When assessing the willingness and ability of Malcolm and Mallory to
foster a relationship between the other parent and the children, the superior court found
that, on balance, Malcolm was "perhaps slightly less at fault with regard to this factor."23
Mallory argues that the court improperly assessed this factor based on the evidence.
The court noted that Mallory "has been overly supportive" of Brooke and
that Mallory was not fostering a good relationship between Brooke and Malcolm by
always supporting Brooke. The court also stated, "[Malcolm] seems to be more able to
avoid negative comments about [Mallory]," although the court mentioned potentially
disparaging comments Holly had made.
There is evidence that conflicts with the superior court's assessment. In the
custody investigator's report, Jason reported that neither parent talked much about the
other, Brooke reported that Malcolm would "sometimes roll his eyes or make faces" if
he heard Mallory mentioned in his house, and Megan reported that sometimes Malcolm
21 Blanton v. Yourkowski, 180 P.3d 948, 953 (Alaska 2008).
22 McQuade v. McQuade , 901 P.2d 421, 426 (Alaska 1995) (internal citation
and alterations omitted).
23 See AS 25.24.150(c)(6), quoted in footnote 4.
-17- 6740
----------------------- Page 18-----------------------
said "he does not like Mother which makes Megan sad." None of the children reported
Mallory saying anything derogatory about Malcolm, although Mallory's text messages
to Brooke could be characterized as derogatory.
But again, it is the function of the trial court to assess credibility and weigh
the evidence. The superior court did not consider improper factors or improperly weigh
factors in making its determination.24 The court concluded its assessment of this factor
by expressing its belief that the parties would both calm down after the completion of the
case, again suggesting that this factor was not of primary significance in the court's
overall evaluation. We cannot conclude that the court clearly erred or abused its
discretion based on the conflicting evidence regarding this factor and other more relevant
factors.
5. The superior court's assessment that alcohol does not appear to
be a present concern
Mallory argues that the superior court did not properly assess the influence
of alcohol in Malcolm's life and therefore this factor should have weighed in her favor.25
The court found that "neither party has an alcohol abuse problem or that their use of
alcohol impedes their ability to be parents at this time." The court noted, "[A]lcohol has
been an issue in the past, but it does not appear to be an issue at this time." The record
supports the court's findings. Malcolm testified that he had one or two drinks every day,
but that he was not addicted to alcohol. Tom Lytle stated that the amount of alcohol
Malcolm reported he consumed, in itself, does not indicate substance abuse. Dot
Littleton characterized Mallory as occasionally abusing alcohol as part of her stress
coping mechanism in the past but testified that Mallory was not an alcoholic. Littleton
24 See Gratrix v. Gratrix, 652 P.2d 76, 80 (Alaska 1982).
25 See AS 25.24.150(c)(8), quoted in footnote 4.
-18- 6740
----------------------- Page 19-----------------------
did not consider Mallory to have alcohol abuse issues. Mallory asserts Malcolm still has
issues with alcohol based on her allegation that Megan received a bruised knee from
Malcolm falling on her while drunk. As discussed above, there was no corroborating
evidence to support Mallory's allegation, and the court disregarded it.
The court evaluated conflicting evidence and made its findings. It did not
clearly err or abuse its discretion in finding that "neither party has an alcohol abuse
problem or that their use of alcohol impedes their ability to be parents at this time," and
in neutrally weighing this factor.
6. The superior court's reliance on the child custody investigator's
report
Mallory argues that it was improper for the court to rely on the custody
investigator's report because it was limited in scope. It may have been limited in scope,
but it was based on the investigator's interviews of both parents and all three children.
It also contained relevant, material information. For example, the custody investigator
wrote:
In a family where there is a divorce, children can easily learn
to manipulate their parents when they don't like the
punishment they are receiving. [Brooke] appears to be doing
this; running to Mother when she does not like what happens
at Father's. While there is nothing inappropriate about
[Brooke] confiding in her mother, the problem arises when
there is a perceived alignment with the child by one parent
against the other parent. This can serve to undermine the
other parent's authority and relationship with the child. Like
all children, [Brooke] needs to learn to resolve conflict and
deal with the consequences of her actions.
The court stated, "[A]s the Child Custody Investigator pointed out, . . . [Brooke] (and
[Malcolm D.]) believes that her mother has taken her side in her dispute with her father.
-19- 6740
----------------------- Page 20-----------------------
This has led [Brooke] to conclude that she can manipulate the situation to her benefit
whenever she feels that her father has been mean to her."
Alaska Civil Rule 90.6(d)(2) clearly allows the trial judge to consider the
custody investigator's report. It was not an abuse of discretion for the superior court to
consider the report when making its determination on the motion to modify custody.
C. The Superior Court Did Not Err When It Determined That The
Presumption In AS 25.24.150(g) Does Not Apply In This Case.
The superior court concluded that the presumption in AS 25.24.150(g) did
not apply because Malcolm and Mallory had both committed two acts of domestic
violence during the marriage and neither party was more likely to perpetrate violence
than the other. Mallory does not explicitly challenge this conclusion. However, "we
consider pro se pleadings liberally in an effort to determine what legal claims have been
raised."26 Mallory implicitly challenged this conclusion when challenging the court's
findings on the number of domestic violence acts committed by each party.
The superior court found that during the marriage Malcolm and Mallory
had each committed two acts of domestic violence and "they each have a history of
26 Toliver v. Alaska State Comm'n for Human Rights, 279 P.3d 619, 622
(Alaska 2012).
-20- 6740
----------------------- Page 21-----------------------
domestic violence as that term is defined by AS 25.24.150(h)."27
Alaska Statute 25.24.150(i)(1) states:
If the court finds that both parents have a history of
perpetrating domestic violence under (g) of this section, the
court shall . . . award sole legal and physical custody to the
parent who is less likely to continue to perpetrate the violence
and require that the custodial parent complete a treatment
program[.]
The superior court determined that "neither party [is] less likely than the other" to
perpetrate domestic violence. The court correctly stated, "AS 25.24.150(i)(1) does not
address the situation before the court, where neither party is less likely to perpetrate the
violence than the other party." The court concluded that under such circumstances, "the
presumption set forth in AS 25.24.150(g) does not apply to either party and hence that
the court is free to fashion a custody decree that meets the best interests of the children
notwithstanding the requirements of AS 25.24.150(h)."
27 Alaska Statute 25.24.150(h) states:
A parent has a history of perpetrating domestic violence
under (g) of this section if the court finds that, during one
incident of domestic violence, the parent caused serious
physical injury or the court finds that the parent has engaged
in more than one incident of domestic violence. The
presumption 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 parent's 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.
-21- 6740
----------------------- Page 22-----------------------
We have not previously addressed the issue of how to make a custody
determination in light of findings that both parents have histories of committing domestic
violence and that neither parent is more likely to perpetuate violence than the other. The
Supreme Court of North Dakota has addressed this issue thoughtfully on several
occasions. In one case that court held, "When the evidence shows an equal amount of
domestic violence on the part of both parents, the [rebuttable] presumption [against
awarding custody to the perpetrator of the domestic violence] should apply to neither
party."28 In another case, that court stated:
[I]f domestic violence has been committed by both parents,
the trial court [must] measure the amount and extent of
domestic violence inflicted by both parents. If . . . the trial
court finds that the amount and extent of the violence
inflicted by one parent is roughly proportional to the violence
inflicted by the other parent, and both parents are otherwise
found to be fit parents, the presumption against awarding
custody to either perpetrating parent ceases to exist. In such
a case, the trial court is not bound by any presumption, but
may consider the remaining customary best-interests factors
in making its custody decision.29
We agree with the analysis and procedure outlined by the North Dakota Supreme Court.
If the trial court finds that both parents have a history of perpetrating domestic violence
28 Huesers v. Huesers , 560 N.W.2d 219, 222 (N.D. 1997); see also Nancy Ver
Steegh, Differentiating Types of Domestic Violence: Implications for Child Custody ,
65 LA . L. REV . 1379, 1425 (2005) ("Equally initiated violence is only likely to occur in
cases involving Situational Couple Violence and, for the foregoing reasons, rebuttable
presumptions against custody awards to perpetrators should not apply in those cases.").
The superior court in this case expressly found the parties' mutual domestic violence was
equal and "situational."
29 Krank v. Krank , 529 N.W.2d 844, 850 (N.D. 1995) (internal citation
omitted).
-22- 6740
----------------------- Page 23-----------------------
as defined by AS 25.24.150(h), but also finds that neither parent is more likely than the
other to continue to perpetrate the violence, the trial court may exercise its discretion and
conclude that the rebuttable presumption set forth in AS 25.24.150(g) does not apply to
either parent. Thereafter, the trial court should consider the remaining best-interests
factors in making its custody decision.
We emphasize that the trial court must take a qualitative approach when
considering the nature and extent of the domestic violence committed by both parents
rather than merely counting the number of domestic violence occurrences to determine
whether the rebuttable presumption in AS 25.24.150(g) applies. For example, if one
parent committed two heinous acts such as violent assaults upon the other parent, but the
other parent committed two comparatively minor incidents, the trial court should take a
holistic or qualitative approach when determining if the presumption applies rather than
concluding the presumption does not apply merely because the parents committed the
same number of incidents. In this example, a trial court likely would find that the
presumption applies against the perpetrator of the more egregious domestic violence. As
always when exercising its fact-finding and discretionary responsibilities, the trial court
will want to make sufficient findings and provide an explanation of its reasons for its
decision. The incidents of violence do not have to be exactly equal in intensity for the
court to conclude that neither parent is more likely to perpetrate the violence.
Here, the superior court did a proper qualitative assessment: it did not find
all of Mallory's allegations credible (e.g., the second choking incident), it found Malcolm
had committed acts of domestic violence, and it found Mallory also committed two
comparatively minor acts of domestic violence. The court found the domestic violence
was "situational." The court also found that domestic violence "is not likely to recur by
either party" and that "domestic violence is not a factor that precludes the parties from
sharing custody of the girls." We see no clear error in these findings, and we conclude
-23- 6740
----------------------- Page 24-----------------------
the court did not abuse its discretion in concluding the presumption did not apply under
these circumstances.
V. CONCLUSION
We AFFIRM the judgment of the superior court in all respects.
-24- 6740
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
