You can
search the entire site.
or go to the recent opinions, or the chronological or subject indices.
R. Long v. D. Long (8/9/91), 816 P 2d 145
<![CDATA[
NOTICE: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers are
requested to bring typographical or other formal errors to
the attention of the Clerk of the Appellate Courts, 303 K
Street, Anchorage, Alaska 99501, in order that corrections
may be made prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
REGINA A. LONG, )
) Supreme Court File No. S-3758
)
Appellant, ) Superior Court File No.
) 3AN-87-2263 Civil
v. )
) O P I N I O N
DENNIS A. LONG, )
)
Appellee. ) [No. 3734 - August 9, 1991]
________________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Victor D. Carlson, Judge.
Appearances: Cheri C. Jacobus, Ross,
Gingras, Bailey & Miner, for Appellant. No
appearance for Appellee.
Before: Rabinowitz, Chief Justice, Burke,
Matthews, Compton and Moore, Justices.
BURKE, Justice.
MATTHEWS, Justice, concurring.
The superior court ordered sole physical and legal custody
of the four minor children in this case changed from their
mother, Regina Long, to their father, Dennis Long. The
superior court also ordered Regina Long to pay child support.
Regina Long appeals.
I
Regina and Dennis Long were married on May 26, 1973, and
divorced on July 24, 1987. The marriage produced four
children: Virginia, born October 7, 1973; Rebecca, born June
4, 1976; Gregory, born April 18, 1980; and Jonathan, born
January 18, 1983. Regina, plaintiff in the divorce
proceeding, sued for sole custody of the children. Dennis
counterclaimed for sole custody.
In September 1987, Judge Peter A. Michalski conducted a two-
day hearing to adjudicate the custody claims. At the close of
the hearing, Judge Michalski ordered divided custody of the
Long children. Dennis received custody of the oldest
daughter, Virginia; Regina received custody of the three
younger children. The Longs' divorce and custody
proceedings were very acrimonious. Unfortunately, the new
custody arrangement did nothing to alleviate the acrimony.
Instead, Dennis and Regina continually fought over property-
division, visitation, child-care, and child-support issues.
Regina returned to court several times during 1988, obtaining
orders against Dennis for child support payments in arrears
and attorney's fees. Dennis raised defenses and claims of his
own in each proceeding.
Meanwhile, the Longs' personal lives changed considerably.
In late 1987, Regina and the three younger children moved in
with Albert J. Turinsky, Jr. In August 1988, Dennis married
Wanda Long, a woman with two young children of her own.
Additionally, either in late 1988 or early 1989, Regina and
Turinsky made plans to relocate, with the three younger Long
children, from Anchorage to Juneau.1 The proposed move
demonstrably upset several of the children.
Dennis and Regina's new relationships significantly affected
the Long children. On the positive side, the children had a
great deal more adult supervision in each household. On the
negative side, the new relationships added two new
participants to an ongoing feud. In each household, the
adults openly disparaged the other household. The children's
guardian ad litem found this practice particularly harmful to
the children.2 Additionally, all four adults became involved
in a struggle to dictate minor details in the visitation
scheme. One couple might refuse to accept the children except
at a certain location and time; the other couple would respond
by deliberately depositing the children at a different
location at a different time. For one period of about eight
months, Dennis flatly refused to take the children for
visitation at all. Meanwhile, in Regina's household the
adults limited the children's access to the telephone in order
to prevent them from talking to their father. Testimony indi
cated that on at least one occasion Regina and Turinsky
disassembled a telephone before leaving the children at home
alone. For many months, even when a court order required
Regina and Turinsky to allow telephone contact between Dennis
and the children, Regina and Turinsky recorded and monitored
all such calls.
Finally, on January 30, 1989, Dennis Long, appearing pro se,
filed a Motion for Change of Custody in which he requested
that the superior court award him custody of all four
children. In August 1989, Judge Victor D. Carlson conducted a
five-day hearing on Dennis' motion. On the last day of the
hearing, Judge Carlson rendered an oral statement of decision
changing "sole legal and physical custody"of the four Long
children to Dennis. The court also granted Regina liberal
visitation with the three younger children and "optional"
visitation with Virginia.3 The court did not issue written
findings.4
Some four weeks after the August 1989 hearing, Dennis and
Regina were again in court, arguing the first of many motions
that they would each file before the end of the year. Among
these motions was Regina's Motion for Reconsideration of the
change of custody order, which Judge Carlson denied on
December 19, 1989. Also on December 19, 1989, Judge Carlson
ordered Regina to pay child support to Dennis in the amount of
one hundred dollars per child per month.
The following day, December 20, 1989, Regina filed, under
seal, a Motion to Set Aside Orders Modifying Custody and to
Recuse Assigned Trial Judge. The motion for recusal alleged
an appearance of impropriety in the way Judge Carlson had
handled the case, pointing specifically to aspects of the
custody modification hearing and to decisions on the parties'
multiple motions and cross-motions in September through
December 1989.
Judge Carlson refused to recuse himself, and the matter was
assigned to Judge Karen L. Hunt. On February 27, 1990, Judge
Hunt denied Regina Long's motion to disqualify Judge Carlson.
Regina appeals Judge Carlson's child custody, child support,
and recusal decisions, and Judge Hunt's refusal to disqualify
Judge Carlson.
II
A child custody or visitation award "may be modified if the
court determines that a change in circumstances requires the
modification of the award and the modification is in the best
interests" of the children involved. AS 25.20.110. The
parent making the motion for custody modification bears the
burden of proving a substantial change of circumstances as a
threshold matter. Lee v. Cox, 790 P.2d 1359, 1361 (Alaska
1990); Garding v. Garding, 767 P.2d 183, 184-85 (Alaska 1989).
Once the movant meets that burden, he or she is entitled "to a
hearing to consider whether, in light of such changed
circumstances, it is in the child's best interest to alter the
existing custodial arrangement." Lee, 790 P.2d at 1361. The
burden of proof remains on the parent making the motion to
"demonstrate that the changed circumstances, considered in
conjunction with other relevant facts bearing upon the child's
best interests, warrant modification of the existing custody
decree." Id.
We will reverse the trial court's order to modify custody
only if "the record shows an abuse of discretion or if
controlling factual findings are clearly erroneous." McClain
v. McClain, 716 P.2d 381, 384 (Alaska 1986); Gratrix v.
Gratrix, 652 P.2d 76, 79-80 (Alaska 1982). Abuse of
discretion in child custody cases may occur when, in reaching
its decision, the trial court considers improper factors,
fails to consider statutorily mandated factors, or gives too
much weight to some factors. S.N.E v. R.L.B., 699 P.2d 875,
878 (Alaska 1985); Starkweather v. Curritt, 636 P.2d 1181,
1182-83 (Alaska 1981); Deivert v. Oseira, 628 P.2d 575, 577
(Alaska 1981).
A. Substantial Change of Circumstances
The superior court's oral statement of decision contains
four factual findings to support the conclusion that Dennis
had shown a substantial change of circumstances. Regina
argues that none of these controlling factual findings can
support a decision to modify custody. Regina asserts that the
factual findings were clearly erroneous, and that the superior
court's misconsideration of all four factual findings amounted
to an abuse of discretion. We disagree.
Initially, we consider Regina's assertions of clear error.
Judge Carlson stated: "I find that there is a substantial
change in circumstances which has affected the children. The
war has continued for another couple years. It's been waged
by both parties. Each party knows how to pull the other's
strings."(Emphasis added.)
Regina notes that the bitter tenor of the custody dispute
existed at the original custody hearing and entered into the
trial court's decision there. Thus, she argues, the parties'
acrimony two years later could not be a "change" of circum
stances. This argument misses the point.
Judge Carlson's finding correctly focuses on the children in
the very first sentence quoted above. It is irrelevant that
the parents' behavior patterns remained constantly contentious
between 1987 and 1989. What is important is that the circum
stances of the children worsened as a result of their parents'
actions. See House v. House, 779 P.2d 1204, 1207 (Alaska
1989) (crucial inquiry was whether the child "faced . . . a
potentially disturbing and upsetting change in
circumstances"). The guardian ad litem's report and the
testimony of the parties and of witnesses at trial all
indicate that the ongoing dispute between Dennis and Regina
had harmed the children. Thus, Judge Carlson's factual
finding on this point was not erroneous.
Judge Carlson stated his second finding as follows:
There's been additional change in
circumstance. Each party has a new relationship
in the nature of a marriage. The relationship
between Mrs. Long and Mr. Turinsky, stormy. At
least he moved out for awhile. He returned to
marriage de facto. Mr. Long has remarried.
Regina Long correctly points out that a recent remarriage --
as an improvement in a noncustodial parent's position -- is
generally not sufficient to justify custody modification.
See, e.g., Gratrix, 652 P.2d at 82; Nichols v. Nichols, 516
P.2d 732, 736 (Alaska 1973). Plainly, however, Judge Carlson
found more than a mere improvement in Dennis Long's position
due to remarriage. Judge Carlson's decision contrasted
Regina's new household and found that her position, insofar as
it affected the children, had deteriorated, while Dennis'
position, gauged under the same criterion, had improved. The
transcript of the hearing contains ample evidence to support
such a finding. Of particular importance here is the guardian
ad litem's report, which repeatedly noted problems in Regina's
household related to Mr. Turinsky's assumption of disciplinary
responsibility. Additionally, the guardian's report singled
out as action particularly harmful to the children Regina and
Turinsky's practice of taping and monitoring telephone calls
between the children and their father. Judge Carlson's inclu
sion of the contrast between the new relationships as one
factor in his changed circumstances analysis was not
erroneous.
As his third finding of changed circumstances, Judge Carlson
noted that the oldest daughter, Virginia, was now in Dennis
Long's custody. Regina Long argues that because Judge
Michalski originally awarded custody of Virginia to Dennis,
Virginia's presence in Dennis' home two years later cannot
amount to a "change." Again Regina's argument misses the
point. Virginia's custody status changed continually between
1987 and 1989. Virginia's voluntary return to Dennis Long's
custody after Dennis remarried and established a new household
definitely represented a change in circumstances worthy of
some consideration in Judge Carlson's analysis, especially in
regard to Virginia's own custody status.
Judge Carlson's fourth and final finding in support of his
changed circumstances decision was Regina's intent "to move
from the Anchorage community." This court has held that a
custodial parent's decision to move out of state may amount to
a substantial change of circumstances as a matter of law.
House, 779 P.2d at 1207-08. Certainly the custodial parent's
decision to move six hundred miles from the noncustodial
parent presents a factor that the court should include in its
changed circumstances analysis.
We turn now to Regina's argument that Judge Carlson
committed an abuse of discretion in finding that the sum of
the changed circumstances in this case amounted to a
substantial change of circumstances. In the past, we have
reviewed multiple changed circumstances to determine whether,
in the aggregate, the changes were sufficient to justify a
reevaluation of a custody decree. See Garding, 767 P.2d at
185-86; Gratrix, 652 P.2d at 78-79. Hence, Judge Carlson's
ruling that the four changes of circumstances in this case
together amounted to a substantial change rests initially on
solid precedent.
Of Judge Carlson's four change of circumstances findings,
the current status of the oldest daughter, Virginia, receives
the least emphasis. Certainly the court did not abuse its
discretion insofar as it considered this factor alone
"substantial"for purposes of deciding Virginia's status. On
the other hand, we do not find any language in Judge Carlson's
decision to suggest that Virginia's current status carried
significant weight in the analysis of the three younger
children's changed circumstances.
Accordingly, we are left with three changed circumstances
factors to consider as support for Judge Carlson's decision to
reevaluate and to change the custody status of the younger
children: (1) the harm to the children resulting from the
parties' continuing disputes; (2) the parties' new
relationships, i.e., Dennis Long's improved position in
contrast to Regina Long's somewhat less stable and less auspi
cious position; and (3) Regina's proposed relocation to
Juneau.
As noted, the record contains ample evidence to suggest that
the first factor was of great significance. The parents'
continuing feud had harmed the children and threatened to harm
the children further unless some change occurred. Ordinarily,
hostility and dispute between the parents, in and of itself,
will not be considered a substantial change of circumstances
unless the adverse impact on the child is extreme. E.g.,
Birge v. Birge, 579 P.2d 297, 299 (Or. App. 1978). The effect
of hostility between the parents, however, may combine with
other significant changes in circumstance to amount, in the
aggregate, to a substantial change sufficient to warrant
change of custody. See id.; see also 2 H. Clark, The Law of
Domestic Relations in the United States 20.9, at 560-61 (2d
ed. 1987).
The record also supports a finding that Dennis Long's
remarriage amounted to a change potentially beneficial to the
children's interests, while Regina Long's new relationship
amounted to a change at least potentially detrimental to the
children's interests. On review, "great weight must be
accorded to the trial judge's experience and to his evaluation
of demeanor testimony." Sheridan v. Sheridan, 466 P.2d 821,
824 (Alaska 1970) (cited in Faro v. Faro, 579 P.2d 1377, 1379
(Alaska 1978)). In this case, Judge Carlson heard at length
from all persons involved in the new relationships.
Additionally, the guardian ad litem's report described the
effect of the parties' new relationships on the children. The
sum of these considerations convinces us that Judge Carlson
reasonably could assign significant weight to the total impact
that the parties' dissimilar new relationships had on the
children.
Finally, Judge Carlson found that Regina's intent "to move
from the Anchorage community . . . will greatly inhibit what
we know is necessary in this case, that the children have
communication with their father." Regina argues that a six-
hundred mile move from one city to another in Alaska is not a
substantial change of circumstances. This argument fails to
address Judge Carlson's concern for the children's continued
communication with their father. Regina also invokes the
following statement, made by Judge Carlson as he recessed the
hearing at the end of the third day:
I'm greatly concerned about the fact that I
think this case is pretty much where Judge
Michalski found it, where he left it and I don't
see how it's changed very much from then. There's
still all this emotional turmoil between the two
parties and maybe the distance of six-hundred
miles between here and Juneau will reduce some of
that. I don't know.
Regina argues that because only two witnesses testified after
Judge Carlson made that statement, Judge Carlson reasonably
could not have changed his mind about the impact of the
proposed move to Juneau. We disagree.
Regina's argument ignores the fact that Dennis Long spent
the entire fourth day of the hearing on the stand, mainly
under cross-examination by Regina's counsel. That protracted
testimony must have added immeasurably to Judge Carlson's
final estimation of Dennis Long. That testimony also must
have added to Judge Carlson's sense of what impact the
proposed move away from Dennis would have on the children.
We conclude that in the aggregate, the factors affecting the
three younger children -- the continuing conflict between the
parents, the combined effect of both new relationships, and
Regina's proposed move to Juneau -- can reasonably be held to
constitute a substantial change of circumstances for purposes
of the requisite preliminary showing. That is, taking the
record as a whole, we cannot say that Judge Carlson erred in
finding a substantial change of circumstances or in finding
that the change in circumstances required modification of the
original custody order. See AS 25.20.110; Lee, 790 P.2d at
1361.
B. The Children's Best Interests
Judge Carlson listed some six factors that led him to decide
that a change of custody was in the best interests of the chil
dren. He considered each parent's capability "of providing
for the material, spiritual and social needs of the children."
He considered whether one parent would be a "better role
model"than the other. He considered the "stability of home,
school, neighborhood . . . [and] security"of the children.
He considered the express preference of Rebecca, the second
oldest child (thirteen at the time of the hearing). He
considered the importance of keeping all of the children
together.5 And Judge Carlson also considered the likelihood
that one parent would "promote a relationship of the children"
with the other parent.
Regina contends that Judge Carlson neglected to apply the
mandatory factors of AS 25.24.150 in reaching his decision.
Again, we disagree. AS 25.24.150 provides, in pertinent part:
(c) . . . 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 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.
The considerations in Judge Carlson's best interests
discussion directly address the mandatory factors in AS
25.24.150, subsections (c)(1)-(3), (6) & (9). No evidence in
the record implies that Judge Carlson should have discussed
subsections (c)(7) & (8). Similarly, evidence in the record
indicates that the children felt much love and affection for
both parents. Thus, Judge Carlson's failure to discuss subsec
tion (c)(4) is comprehensible: the factor was neutral.
The only factor Judge Carlson perhaps failed to address
completely is the one in subsection (c)(5) (child's length of
time in stable, satisfactory environment and desirability of
maintaining continuity). Even there, however, discussion of
changed circumstances necessarily addressed the question of
environment and found Regina's household lacking. And
arguably, Judge Carlson's finding that Dennis made the "better
role model" for the children addresses the question of the
desirability of maintaining continuity. We conclude that
Judge Carlson properly employed the mandatory factors of AS
25.24.150.6
Finally, Regina Long asserts that in his best interests
analysis Judge Carlson reweighed two items of evidence that
had been before Judge Michalski in the original custody
hearing. First, Regina asserts that a witness at both
hearings, Ms. Pamela Yeargan, testified "to the same facts"at
both hearings. This assertion is inaccurate.
It is true that Judge Carlson expressly gave "great weight"
to Ms. Yeargan's insights into the Long family's circum
stances. Furthermore, Ms. Yeargan's opinions and insights, as
expressed in the second hearing, necessarily depended in part
upon her total experience with the Long family. Nonetheless,
the most telling passages of her testimony before Judge
Carlson focused on the recent circumstances of the Long family
and concerned almost entirely matters of fact that arose after
the first custody hearing. Thus, Regina's assertion of abuse
of discretion on this point is without merit.
Second, Regina asserts that Judge Carlson committed an abuse
of discretion by reweighing a psychological report that had
been part of the record in the first custody hearing. Judge
Carlson did refer in his decision to a psychological
evaluation by a Dr. Harper. Judge Carlson stated:
I find that both parties are equally
capable and equally limited as far as promoting a
relationship with the non-custodial parent. On
the face of it, it appears that Mrs. Long may have
been more willing to do that, but I think that
there's an underlying -- [sic] I don't accept it
for it's face value. I notice the edge in Mrs.
Long's voice which certainly gave me some pause
for concern. I went back and reviewed Dr.
Harper's evaluation and I think that at least Mr.
Long is at least as likely to promote a
relationship of the children with their mother as
is Mrs. Long and I would tend to think that he's
more likely to in the circumstances with which
he's now confronted . . . .
In this portion of his decision, Judge Carlson appears to rely
upon psychological evaluations of the parties and of the
children that Dr. James F. Harper prepared for the court in
the original custody proceeding.
Regina correctly argues that a court considering custody
modification must accord great weight to the findings of the
court in the original custody hearing. Gratrix, 652 P.2d at
80; Nichols, 516 P.2d at 735. Furthermore, consideration of
improper factors or an improper weighting of factors may
constitute abuse of discretion. Gratrix, 652 P.2d at 80;
Deivert, 628 P.2d at 577. Thus, Regina asserts with good
reason that Judge Carlson committed an abuse of discretion by
reweighing Dr. Harper's evaluation. However, "[i]n the context
of a custody modification decree, this analysis must be
applied to assess whether the superior court was justified in
changing the previous custody determination."7 Gratrix, 652
P.2d at 80. Abuse of discretion on a subsidiary point,
therefore, does not necessarily result in an abuse of
discretion in the ultimate decision.
Significantly, Judge Carlson refers to the psychological
evaluations after he refers to conclusions about Regina Long
that he drew in response to Regina's court room demeanor: "I
notice the edge in Mrs. Long's voice which certainly gave me
some pause for concern." We agree that Judge Carlson erred by
relying on the two-year old psychological evaluations prepared
for the original custody hearing. We do not agree, however,
that Judge Carlson had no justification for deciding that
Dennis would be more likely than Regina to promote a
relationship between the children and the ex-spouse. Evidence
in the record supports Judge Carlson's wary response to
Regina. Consequently, we conclude that, improper
consideration of a factor notwithstanding, Judge Carlson did
not commit an abuse of discretion in his ultimate custody
decision.
III
In December 1989, Judge Carlson issued several rulings in
this case, including a denial of Regina's Motion for
Reconsideration and an order against Regina for payment of
child support. The day after Judge Carlson issued those
rulings, Regina Long filed, under seal, a Motion to Set Aside
Orders Modifying Custody and to Recuse Assigned Trial Judge.
Judge Carlson refused to recuse himself.
Regina argues that Judge Carlson violated Canons 2 and 3 of
the Code of Judicial Conduct when he refused to recuse
himself. Canon 2 states that a judge should avoid impropriety
and the appearance of impropriety in all activities. Alaska
Code of Judicial Conduct, Canon 2. Canon 3 requires a judge
to "disqualify himself in a proceeding in which his
impartiality might reasonably be questioned, including . . .
instances where . . . (a) he has a personal bias or prejudice
concerning a party." Id. at Canon 3(C)(1). Regina also
argues that Judge Carlson violated AS 22.20.020(a)(9), which
forbids a judge from acting in any matter in which the judge
"feels that, for any reason, a fair and impartial decision
cannot be given."
Regina's assertions that Judge Carlson violated the two
Canons and the statute rely upon the following facts: Dennis
Long is an Anchorage police officer and a witness Dennis
called at the custody modification hearing, Officer Chapman,
was a police officer who had been involved in a brief police
investigation of Judge Carlson in Spring 1989. These facts
alone do not provide sufficient foundation for Regina's
argument here.
The two major Anchorage newspapers did not reveal
information about the Spring 1989 police investigation of
Judge Carlson to the public until December 1989. Nothing in
the record suggests that Judge Carlson himself was aware at
the time of the August 1989 custody modification hearing that
the police had investigated him or that he knew Officer
Chapman had been involved in the brief investigation. Nor
does the record suggest that, at the time of the custody
modification hearing, the police maintained any further
interest in investigating Judge Carlson. Moreover, Officer
Chapman's testimony was relevant to issues related to the best
interests of the children in this case. Mr. Turinsky had
worked with Officer Chapman on a city commission, and Officer
Chapman's testimony at the custody modification hearing mainly
concerned his personal knowledge of Turinsky. Some of Officer
Chapman's testimony significantly impeached testimony Turinsky
himself had earlier offered at the hearing.
"[W]here a judge's refusal to disqualify himself is
'patently unreasonable,' we will reverse, but . . . in cases
'where only the appearance of partiality is involved' we will
require a 'greater showing' for reversal." Alaska Trams Corp.
v. Alaska Elec. Light & Power, 743 P.2d 350, 353 n.7 (Alaska
1987) (quoting Amidon v. State, 604 P.2d 575, 578 (Alaska
1979)). Regina's ability to connect this case tangentially to
the municipal police department simply is not a "great
showing" of apparent partiality. Judge Carlson committed no
abuse of discretion by refusing to recuse himself under the
strictures of the Code of Judicial Conduct, Canons 2 and 3.
Regina's argument that Judge Carlson violated AS 22.20.020
is similarly conjectural and unconvincing. Whether Judge
Carlson should have disqualified himself in this case to avoid
rendering unfair decisions or decisions partial to Dennis Long
is "a sensitive question of assessing all the facts and
circumstances in order to determine whether . . . an abuse of
sound judicial discretion"occurred. Blake v. Gilbert, 702
P.2d 631, 642 (Alaska 1985) (quoting United States v.
Haldeman, 559 F.2d 31, 139 n.359 (D.C. Cir. 1976), cert.
denied, 431 U.S. 933 (1977)). Judge Carlson's decision not to
disqualify himself "will not be reversed 'unless it is plain
that a fair-minded person could not rationally come to [the
same] conclusion on the basis of known facts.'" Id. at 640
(quoting Amidon v. State, 604 P.2d 575, 577 (Alaska 1979)).
The known facts in this case include a record of the evidence
before Judge Carlson in the custody modification hearing and a
decision by Judge Carlson based on that evidence. We have
found that Judge Carlson's custody order was not an abuse of
discretion; we likewise find that the facts rationally support
Judge Carlson's refusal to disqualify himself. In other
words, "[a] review of the record as a whole fails to reveal
any unfairness in the conduct of the [proceedings] and the
alleged instances of bias, considered either collectively or
individually, fail to demonstrate any specific bias or
generalized pattern of bias." Alaska Trams, 743 P.2d at 353.
On February 27, 1990, Judge Karen L. Hunt heard from the
parties in this case on the question of Judge Carlson's
disqualification.8 At the close of the hearing, Judge Hunt
denied the motion to disqualify Judge Carlson. In her oral
statement of decision, Judge Hunt first addressed Regina's
argument that some of Dennis' motions had "been walked through
[Judge Carlson's] chambers and signed." Judge Hunt found the
procedure Regina complained of "prevalent"in the court sys
tem, "not improper,"and quite susceptible to "an ordinary
explanation" other than impropriety. Judge Hunt further
explained that she found a "reasonable basis in law and in
fact" to support the decision to change custody of the Long
children to Dennis Long. Consequently, Judge Hunt refused to
disqualify Judge Carlson.
Regina argues that Judge Hunt improperly reviewed Judge
Carlson's decisions and actions.9 We disagree. Judge Hunt
found no evidence of partiality in the handling of post-
hearing motions and orders. In addition, Judge Hunt found
that Judge Carlson's decision in the case was reasonable for
essentially the same reasons we have articulated above in
reaching the same conclusion. Judge Hunt thus properly
reviewed the known facts in the case before she determined
that Judge Carlson had committed no abuse of discretion by
refusing to recuse himself. See Alaska Trams, 743 P.2d at 352-
53; Blake, 702 P.2d at 640; Amidon v. State, 604 P.2d at 577-
78. We find that those facts rationally support Judge Hunt's
decision. Thus, Judge Hunt committed no abuse of discretion
in refusing to disqualify Judge Carlson.
IV
On December 19, 1989, in an addendum to the original order
changing custody of the Long children, the superior court
ordered Regina Long to pay support in the amount of $100 per
child per month. Regina Long raises several arguments in
opposition to the superior court's child support order. One
of these arguments has considerable merit.
The superior court's award of visitation to Regina is
decidedly unclear. Also unclear is the way in which that
award might affect support calculation under Alaska Civil Rule
90.3. The court ordered as follows:
Visitation with the three younger children,
Christmas 1989 for the two week period at the
Plaintiff's expense, Spring vacation with Mr. Long
of 1990, then that's reversed over the years.
Summer visitation 1990 from July 10 through August
25 for the two boys and Rebecca, if she so
chooses, at shared expense . . . .
We need to have some testimony or
indication about the capacity of Mrs. Long to pay
child support . . . . When in the same community
Mrs. Long would have alternate weekend
visitations, alternate birthdays, Friday -- the
weekend would be Friday from 6:00 p.m. through
Sunday at 7:00 p.m. If not in the same community,
if she is back here visiting, seventy-two hours
out of any fifteen day period -- [sic] out of any
ten day period, but not to interfere with the
children's schooling.
Dennis Long, appearing pro se, drafted the court's order almost
verbatim, including the disjunctive last sentence. Judge
Carlson signed the order without editing any of the visitation
award language. As a result, the actual amount of visitation
time specified in the order is uncertain. This uncertainty is
fatal to the validity of the court's visitation and child
support awards.
In particular, Regina argues that because the superior
court's visitation decree specifically granted her visitation
for at least thirty percent of the year, she has "shared
custody" for purposes of child support calculation under
Alaska Civil Rule 90.3.10 See Charlesworth v. Child Support
Enforcement Division, 779 P.2d 792, 795 (Alaska 1989). Regina
further argues that under the shared custody formula of Rule
90.3, Dennis should pay her child support.
The visitation decree on its face appears to grant Regina
potential visitation for at least thirty percent of the year
when the decree awards "seventy-two hours out of any . . . ten-
day period,"in the event that Regina has moved out of the
Anchorage community. On the other hand, the part of the court
decree governing visitation in the event that Regina remains
in the Anchorage community specifies visitation for just
slightly less than thirty percent of the year.11
The superior court's visitation decree is unacceptably
ambiguous. Regina contends that when the court calculated her
support obligation it ignored the shared custody provision of
Rule 90.3(b). The record confirms that contention. Taking
the record as a whole, we conclude that the superior court
improperly coordinated, or failed to coordinate, the
visitation and support awards in this case. Accordingly, we
reverse the superior court's awards of child support and
visitation and remand the case for redetermination of those
issues.12 Calculation of child support shall conform to the
requirements of Rule 90.3 and the trial court shall make its
actual calculations a matter of record. If the court fixes
visitation with the noncustodial parent at thirty percent or
more of the year, the court also should begin with the
presumption that the shared custody provision of Rule 90.3(b)
applies to the calculation of child support.
We AFFIRM in part and REVERSE in part, and REMAND to the
trial court for further proceedings consistent with this
opinion.
MATTHEWS, Justice, concurring.
I agree with the result of today's majority opinion. I also
agree with the reasoning of the opinion except for the dictum
that "Judge Carlson erred by relying on the two-year old
psychological evaluations prepared for the original custody
hearing." Majority Op. at 18. In my view, those evaluations
were relevant to the issues of whether there was a change of
circumstances and the best interests of the children.
Relevant evidence is admissible except where it is prohibited
constitutionally, legislatively, or by court rule. Alaska R.
Evid. 402. The majority opinion cites no constitutional or
statutory provision or rule which would prohibit admission of
the psychological evaluations.
If Dr. Harper was available as a witness, his former
testimony could have been excluded as hearsay. Alaska R.
Evid. 804(b)(1). However, this objection was not raised in
the trial court or on appeal and it is, therefore, waived.
Further, I do not understand the majority opinion as relying
on hearsay as a basis for its conclusion that Judge Carlson
erred.
_______________________________
1. It is not clear from the record whether Regina and
Turinsky announced their intention to relocate to Juneau
before or after Dennis moved for change of custody. Turinsky
decided to relocate so that he could study for a paralegal
certificate. Less specific academic ambitions motivated
Regina's decision to relocate.
2. The children's guardian ad litem filed a report that
criticized the effect of the adults' continuing dispute on the
children. The report states:
File information and the children's
statements indicate that the children have
been placed under a great deal of duress in
the past two years. The GAL does not believe
the parents were initially able to focus on
the harm done to their children in the
process of fighting each other. All the
children have had nightmares and anxieties.
[Virginia] has severe behavior problems, Jon
regressed with toilet training at one point,
and both Greg and Jon feared for their
parents' well-being. It appears to the GAL
that all 4 adults contributed to this. The
children state that all 4 have made negative
comments about the other side, and/or about
custody issues, resulting in the children
feeling pressured and guilty.
3. Virginia's custody status shifted constantly after
the first hearing. She left her father's home, but eventually
returned to the home her father established with Wanda Long.
She was still with Dennis and Wanda Long at the time of the
custody modification hearing. At the modification hearing,
Regina Long stipulated that, under the circumstances, Dennis
should retake custody of Virginia.
4. The court entered a final order granting change of
custody on October 27, 1989, nunc pro tunc, to August 25,
1989.
5. Regina argues that since Judge Michalski had
considered the importance of keeping the children together
before he ordered divided custody, Judge Carlson should not
have reconsidered this factor. Such an argument misconstrues
the notion of "due deference." Judge Michalski did not decide
that the children had to be kept apart.
6. We also conclude that Judge Carlson's findings
specified the negative effect that the changed circumstances
had on the children precisely enough to bring his decision
within the requirements of Lee, 790 P.2d at 1361 (holding that
trial court must find "changed circumstances, considered in
conjunction with other relevant facts bearing upon the child's
best interests, warrant modification of the existing custody
decree").
7. In Gratrix, for example, the superior court's failure
to accord due deference to the initial custody findings and
the "absence of any substantial change of circumstances" led
us to conclude that the custody modification order was an
abuse of discretion. Gratrix, 652 P.2d at 84.
8. AS 22.20.020(c) provides: "If a judicial officer
denies disqualification the question shall be heard and
determined by another judge assigned for the purpose . . . ."
9. Regina suggests that Judge Hunt should not have
examined Judge Carlson's change of custody decision. Our
decision in Amidon relies upon precisely the contrary rule:
When a trial judge has rendered a decision in a case, review
of that judge's failure to disqualify himself or herself
normally will require review of that underlying decision as
part of the "known facts." See Amidon, 604 P.2d at 577-78.
We made that point explicit in Alaska Trams, 743 P.2d at 353.
10. Civil Rule 90.3(a) provides a basic guideline for
awards of child support when one parent has sole or primary
physical custody of the child. Civil Rule 90.3(b) imposes a
more complex formula for calculating both parents' support
obligations when "the parents are awarded shared physical
custody as defined by paragraph (f)." Id. Paragraph (f)
states that
[a] parent has shared physical custody
of children for purposes of this rule if the
children reside with that parent for a period
specified in writing of at least 30 percent
of the year, regardless of the status of
legal custody.
Id.
A supreme court order effective January 15, 1990, imposed
the 30% requirement in Rule 90.3. Supreme Court Order 1008;
Alaska R. Civ. P. 90.3(f). Prior to 1990, the requirement had
been 25% percent. The 1990 amendment of Rule 90.3 undoubtedly
constitutes a material change in circumstances sufficient to
allow a parent to move for modification of child support.
Charlesworth v. Child Support Enforcement Division, 779 P.2d
792, 794 (Alaska 1989). Consequently, even if the original
child support order should have employed the 25% factor, after
January 15, 1990 that order would have been subject to
modification according to the 30% factor. Thus, we now review
the trial court's support order in light of the 30% factor.
11. The court's visitation award, including summer
vacation, Christmas or Spring vacation, and alternate holidays
and birthdays, yields a total of approximately 108 days
visitation per year. 30% of 365 days is 109.5.
12. The visitation decree in this case is of primary
importance. Throughout the history of this divorce litigation
the courts, the guardian ad litem and the parties have all
agreed that only an award of sole legal custody to one parent,
with liberal visitation to the noncustodial parent, was
feasible. We agree. Upon remand, the court should very
carefully and precisely fix the terms of visitation to
facilitate the chances that the custody and visitation schemes
will work in the best interests of the children.
]]>
