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R. Holl v. C. Holl (8/16/91), 815 P 2d 379
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Notice: This 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
ROGER E. HOLL, )
)
Appellant, ) Supreme Court File
v. ) Nos. S-3109/3178
) Superior Court No.
CONSTANCE E. HOLL, ) 3KN-86-1119 CI
)
Appellee. ) O P I N I O N
) [No. 3737 - August 16, 1991]
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage,
Peter A. Michalski, Judge.
Appearances: Peter F. Mysing, Kenai,
for Appellant. Max F. Gruenberg, Jr.,
Gruenberg & Clover, Anchorage, for Appellee.
Before: Rabinowitz, Chief Justice,
Burke, Matthews, Compton and Moore, Justices.
PER CURIAM.
MATTHEWS, Justice, with whom RABINOWITZ,
Chief Justice, joins, dissenting.
Roger and Constance Hall were married in 1976. They
had
three children prior to their divorce in 1986. The issue of
custody was bifurcated from divorce and property issues, and
tried separately. The custody trial lasted four days, taking
place over a nine month period. The trial court found that
"joint custody is not appropriate in this case"and further that
"[i]t is in the best interests of the minor children that they be
placed in the custody of [Constance], not contingent upon whether
she moves [from the Kenai-Soldotna area] or any other factor."
Reasonable rights of visitation were found to be appropriate, and
a decree was entered accordingly. The trial court denied Roger's
motion for reconsideration, but expanded upon its prior findings
with respect to factors it considered significant to its custody
determination. Roger appealed.
We affirmed the trial court's judgment in part, but
remanded "for further findings of fact [the trial court's]
decision granting Constance Hall sole custody of the children. .
. ." In due course the trial court entered FINDINGS OF FACT ON
REMAND. Roger again appeals. We affirm.
As we have often remarked, "[c]hild custody
determinations are among the most difficult in the law." Horton
v. Horton, 519 P.2d 1131, 1132 (Alaska 1974); see also Horutz v.
Horutz, 560 P.2d 397, 399 (Alaska 1977); Lacy v. Lacy, 553 P.2d
928, 929 (Alaska 1976). Trial courts are vested with broad
discretion in determining child custody issues. Julsen v.
Julsen, 741 P.2d 642, 648 (Alaska 1978). We will reverse a trial
court's custody determination only if we are convinced that the
trial court has abused its broad discretion, or if controlling
findings of fact are clearly erroneous. Id.; Starkweather v.
Curritt, 636 P.2d 1181, 1182 (Alaska 1981); Horutz, 560 P.2d at
399.
When reviewing a trial court's findings of fact, we are
directed by the principle that "[i]t is primarily the trial
court's function to weigh the evidence for the purpose of making
findings, and on appeal, deference must be given to the trial
court's decision, particularly because of the trial court's
advantage in observing the witness." Bonjour v. Bonjour, 566
P.2d 667, 669 (Alaska 1977). "We merely determine whether the
trial court's finding is supported by the record." Lone Wolf v.
Lone Wolf, 741 P.2d 1187, 1190 (Alaska 1987) (quoting Brooks v.
Brooks, 733 P.2d 1044, 1051 (Alaska 1987)).
In its oral findings of fact regarding custody,
rendered from the bench at the conclusion of the trial, the trial
court said:
But, let me tell you where I am on
custody. After reviewing the evidence of the
relationship of the parents to each other and
the children to their parents, in spite of
hearing the positions stated by the parties
today, I don't think that joint custody is
appropriate for these children and I do think
that they should be placed in the custody of
their mother and that should not be based on
some kind of contingency if they move or
don't move kind of thing and that Mr. Holl
should continue to have substantial
visitation. And, if the parties are able to
work it out so that it continues to be one
week and one week, that is a certain kind of
parental wisdom that they may and have the
right to exercise over their children;
however, subject to the parents agreeing,
which they sound like they actually have
reached agreement on equal care of the
children, it would be the Court's order that
the visitation of the Defendant be the
standard weekend, alternating holidays and
three or four weeks in the summer kind of
visitation and that the Court is not making
it a contingent order, it's the order of the
Court and if she wishes to grant a greater
visitation, that's up to her. I do this
because I think that the key for children, as
well as having a relationship with both
parents which is at the heart of this idea of
joint custody and of trying to find wise
orders for parenting, I think that the key is
reaching some stability for these -- children
and if you listen to the information that's
come to this Court about these children, they
need that very, very much and lack it to some
substantial degree by virtue of their
conduct, behavior and the problems that
they've experienced and demonstrate. One of
the examples, just in today's testimony if
you listen back to it, the children saying,
"Mom, can I come home?" I think that that is
the kind of, you know, maybe an accidental
way of phrasing the testimony, maybe it was a
precise recitation, but I think it's
characteristic of the impression that this
Court has received about the view of these
children toward their experience being in
this split relationship and that is that they
have a home one place and that they are with
dad at another and that's how it is. And,
that it's important, I think, for children to
have a place. To be constantly buffeted back
and forth is not wholesome, no matter how
much it may be done, and that equality of
time together is not the cross upon which
children should be crucified. They need to
have stability, a sense of place, along with
a meaningful relationship with both parents.
And, I think that to the extent this Court
must make a finding as to what's in the best
interest of the children, it does so in
finding that Constance Holl can better
parent, meeting the needs for love,
affection, daily care and that she can
promote and will promote this meaningful
relationship with Mr. Holl in spite of the
problems that both sides have recognized and
about which she has testified as well as Mr.
Holl to some extent. So, that's the Court's
ruling on custody.
In its ADDITIONAL FACTUAL FINDINGS that accompanied its
denial of Roger's motion for reconsideration, the trial court
made several findings bearing directly on custody. It noted that
it was placing particular emphasis and had scrutinized most
carefully the testimony of the parents, much of the testimony of
other witnesses being either cumulative or second hand. It had
weighed the demeanor and had judged the credibility of the
parents. The trial court was impressed with Constance's
testimony and demeanor. It found her to be believable and
particularly relied on her testimony when it differed from
Roger's. It believed that many of the instances of abuse
Constance recounted had actually taken place.
The trial court identified incidents of non-cooperation
by Roger: (a) avoidance of service of process; (b) encumbering
his airplane against a standing order; (c) failure to assist
Constance in maintaining the family home; (d) denial to Constance
of assistance in regard to a sewage problem; (e) failure to
provide adequate support for the family; (f) inability to work
with Constance unless he was given equal time with the children.
The court found specifically that "[Constance] did not willingly
enter into any kind of permanent joint custody agreement with
[Roger], but her acquiescence was dictated largely out of
necessity. She had little choice but to remain in Kenai, because
she had few financial resources to move elsewhere, particularly
during the pendency of this case."
The court concluded by finding that Constance had a
greater capacity and desire to meet the emotional and social
needs of the children than did Roger, and "that any benefit in
the children's remaining in Kenai/Soldotna [was] outweighed by
[the children's] need for a stable environment with [Constance].
. . ."
The trial court's FINDINGS OF FACT ON REMAND, appendix
"A" hereto, amplify on its prior oral and written findings and
include specific record citations to evidence supporting the
amplified findings.
The evidence presented to the trial court is not one-
sided. To be sure, Roger presented evidence which was in sharp
contrast to that presented by Constance, or which cast her
evidence in a light less favorable to her and more favorable to
him. Had the trial court chosen to believe Roger, the
presumption for shared custody declared by the legislature in the
legislative intent found in ch. 88, section 1, SLA 1982, and
approved by this court, might require a different result.
However, the trial court chose not to believe Roger on critical
matters, and set forth its reasons for denying shared custody, as
is required of it by AS 25.20.100. Given the evidence in the
record, and given the deference due the trial court's findings
and the exercise of its discretion, we cannot say that we are
left with a definite and firm conviction that the findings are
not supported by the evidence or that the trial court abused its
broad discretion in awarding sole legal custody to Constance.
The judgment of the trial court is AFFIRMED.
MATTHEWS, Justice, with whom RABINOWITZ, Chief Justice,
joins, dissenting.
I believe the trial court abused its discretion in this
case; that the court's decision to award sole custody to
Constance Holl was based on an impermissible factor;1 and that
the court improperly weighed other factors in making its
determination. See Julsen v. Julsen, 741 P.2d 642, 649 (Alaska
1987); McClain v. McClain, 716 P.2d 381, 384 (Alaska 1986).
In his oral findings of fact, Judge Michalski suggests
that the decision not to award shared custody at least partially
rested on his opinion that greater stability is achieved for
children, in general, when a single parent has custody. See
Majority Op. at 4. He stated that
it's important, I think, for children to
have a place. To be constantly buffeted back
and forth is not wholesome, no matter how
much it may be done, and that equality of
time together is not the cross upon which
children should be crucified. They need to
have stability, a sense of place, along with
a meaningful relationship with both parents.
Id. This statement demonstrates a specific bias, contrary to
the presumption favoring shared custody,2 which is sufficient to
warrant a remand for reconsideration. Johnson, 564 P.2d at 76;
Carle, 503 P.2d at 1055.
The lack of sufficient evidence that shared custody
should not be preferred, however, leads me to believe that we
should reverse. The trial court weighed its findings of fact
against the recommendation of the court custody investigator,
Yeotis, and a record of over two years of successful joint
custody which even Constance had found agreeable.3 Giving proper
weight to the presumption in favor of shared custody, the trial
court erred by denying shared custody on this record.
The majority lists six "incidents of non-cooperation."
Majority Op. at 4, 5. These incidents suggest non-cooperation
related to the divorce proceedings, not child rearing. While
evidence of non-cooperation that is unrelated to child rearing
can be relevant, the degree of relevancy depends upon the
inference that such non-cooperation would extend to the welfare
of the children.4 In the case at bar, there is no indication
that the parents had failed to cooperate in regard to decisions
regarding the children's upbringing. Roger actually exhibited a
willingness to defer to Constance on important issues. Yeotis
confirmed the ability of the parents to cooperate with regard to
the children.
The trial court also mentions, in its Findings of Fact
on Remand, a potential danger of emotional and physical abuse by
Roger towards his children. If the court was convinced of its
conclusions concerning abuse, it would have favored restricting
Roger's unsupervised physical custody of the children. Instead,
Judge Michalski stated that he would be agreeable to equal
physical custody, even though, following the court's reasoning,
physical custody of the father could create undue concern for the
children's emotional or physical welfare.5 The court's broad
endorsement of physical custody by Roger, demonstrates that the
court did not consider there to be an actual threat to the
children. Without such a threat, it was clearly erroneous to
weigh this factor against Roger.6
For the above reasons, I would reverse the custody
decree and remand with directions to fashion a joint custody
arrangement.
_______________________________
1 See Johnson v. Johnson, 564 P.2d 71, 76 (Alaska 1977)
(tender years doctrine); Carle v. Carle, 503 P.2d 1050, 1055
(Alaska 1972) (benefit of assimilation into dominant culture).
2 See An Act Relating to Child Custody, ch. 88, 1(a), SLA
1982:
(a) The legislature finds that it is
generally desirable to assure a minor child
frequent and continuing contact with both parents
after the parents have separated or dissolved
their marriage and that it is in the public
interest to encourage parents to share the rights
and responsibilities of child rearing. While
actual physical custody may not be practical or
appropriate in all cases, it is the intent of the
legislature that both parents have the opportunity
to guide and nurture their child and to meet the
needs of the child on an equal footing beyond the
considerations of support or actual custody.
Id. (emphasis added); Bell v Bell, 794 P.2d 97, 99 (Alaska 1990)
(legislative intent "favors joint legal custody, regardless of
the physical custody arrangement"). AS 25.20.090(3) requires
that the court consider "the stability of the home environment
likely to be offered by each parent." Judge Michalski's
preference towards single parent custody also runs contrary to
this statutory mandate.
3 Constance went on to state that "Roger has--in all
fairness, he has spent a lot of time with the boys in this past
year and done a lot, and they have adjusted to his home more, and-
-and we are reaching that point. So, as long as we are in the
same community, I like the equal time."
4 See AS 25.24.150(d) ("[i]n awarding custody the court may
consider only those factors that directly affect the well-being
of the child"); see also In re Moore's Marriage, 531 P.2d 995,
997 (Colo. 1975) (mother living with man to whom she was not
married was imposition of courts own standard, and was not
conduct relating to the welfare of the children).
5 The court stated that "if the parties are able to work it
out so that it continues to be one week and one week, that is a
certain kind of parent wisdom that they may have the right to
exercise over their children."
6 The record contains only two examples of what allegedly is
the use of excessive force against the children. The first was
that Roger had used a belt to discipline one of the children.
The second, that Roger had pushed one of the children to the
ground. Neither of these examples, taken alone, establishes that
Roger is a danger to the children or even that he disciplines
them too harshly. Beyond this, the conduct found relevant to the
trial court relates more to problems in the spousal relationship
than to problems between the father and his children.
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