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R. Farrell v. R. Farrell (11/1/91), 819 P 2d 896
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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
ROBERT FARRELL, )
) Supreme Court No. S-3959
Appellant, )
) Trial Court No.
) 3KN-88-977 Civil
v. )
) O P I N I O N
RUTH FARRELL, )
) [No. 3767 - November 1, 1991]
Appellee. )
______________________________)
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Kenai,
Joan M. Katz, Judge.
Appearances: Peter F. Mysing, Kenai,
for Appellant. Robin Bronen, Michael
Gershel, Carol Daniel, Alaska Legal Services
Corporation, Anchorage, for Appellee.
Before: Rabinowitz, Chief Justice,
Burke, Matthews, Compton, and Moore,
Justices.
MATTHEWS, Justice.
RABINOWITZ, Chief Justice, dissenting in part.
In this domestic relations case, Robert Farrell appeals
from the superior court's grant of sole legal custody of the
parties' children to their mother, Ruth. He also disputes the
court's child support and property division determinations.
FACTUAL BACKGROUND
Ruth and Robert Farrell were married on March 18, 1975.
They permanently separated in January 1988, and divorced on
November 22, 1989. Four children were born during the marriage:
Robert, Jr., born July 19, 1978; Doris, born August 9, 1979;
Jamie, born December 19, 1981; and Mary Lou, born April 5, 1983.
Both Ruth and Robert had children from previous relationships.
Helen Wakefield, Robert's daughter, lived with the Farrells off
and on between 1980 and 1984. Robert has another daughter who
also lived with the parties occasionally. Carl Dexter, Ruth's
son, lived with the Farrells continuously from 1974 until 1980,
and then sporadically until 1985. Carl and Helen are now adults.
Robert was the family's sole financial provider. He
was employed in the oil industry during the marriage and remains
employed by the industry as a drilling supervisor. Robert does
not have an established work schedule and his employment requires
him to be away from home for extended periods. At the time of
trial, he was required to be on-call twenty-four hours a day for
possible departures from home for jobs. However, he is
reasonably able to determine his work schedule through his
placement on the call-out list.
The parties have greatly disparate earning capacities.
Robert earns a base monthly salary of $3,500. He receives an
additional $300 per day for each day he is employed in the field.
According to Robert, his monthly salary fluctuates between $3,500
and $10,000, and averages $7,000 per month. Based on his 1988
income tax return, Judge Katz found Robert's net income to be
$72,066, yielding a net monthly income of $6,005.50. Judge Katz
found that Ruth had a net monthly income of $600. She did not
work outside of the home during the marriage, but has worked on
and off since the separation as a cook for $4 an hour. When she
worked in the summer she grossed about $930 a month, and in the
fall and winter of 1989 she grossed $400 a month. Ruth was not
working at the time of trial. She plans to obtain clerical
skills at a vocational school.
Robert and Ruth both drank alcohol excessively during
their marriage. Since Ruth began alcohol counseling in 1985 she
has remained sober, with only one exception. Robert continues to
drink and drinks in the presence of the children.
The relationship between Robert and Ruth included much
domestic violence, often associated with the parties' drinking.
Ruth has hit, bitten and scratched Robert and the children.
Robert has assaulted Ruth and Carl. In one incident Robert
chased Ruth, Bobby, and Carl out of the home with a gun. The
police were called and removed Robert from the home. Following
this episode, Ruth resided in a battered women's shelter for a
month.
Ruth admits that she did not have a good relationship
with the children during the marriage, although she believes it
is better now because she is not drinking. The older children,
Helen and Carl, testified that they had significant child care
responsibilities and that Ruth was not an adequate caregiver.
Robert and Ruth separated several times in the course of the
marriage. During two of these separations, Ruth left the
children in the care of Robert. The parties separated
permanently when Robert moved out of the family home and into a
house with his fiancee, Sharon Rusnak.
Robert filed for divorce in November of 1988, seeking
dissolution of the marital relationship, custody of the children,
and an equitable property division. Ruth answered and
counterclaimed for custody of the children. The matter was
bifurcated; the Decree of Divorce was granted by Judge Ripley on
November 22, 1989, and the issues of child custody, child
support, spousal support, and property division were decided by
Judge Katz on February 27, 1990. Robert brings this appeal
contending that the superior court erred by granting sole legal
custody of the children to Ruth, and that the child support award
and property division were improperly calculated.
DISCUSSION
I. Child Custody
Trial courts are vested with broad discretion in child
custody matters. Gratrix v. Gratrix, 652 P.2d 76, 79 (Alaska
1982). This court will reverse a trial court's resolution of
custody issues only if it is convinced that the record shows an
abuse of discretion or if controlling factual findings are
clearly erroneous. Id. at 79-80; Horutz v. Horutz, 560 P.2d 397,
399 (Alaska 1977). "Abuse of discretion is established if the
trial court considered improper factors or failed to consider
statutorily-mandated factors, or improperly weighted certain
factors in making its determination." Gratrix, 652 P.2d at 80.
Robert contends that Judge Katz disregarded the
legislature's expressed preference for joint custody.1 Her
findings of fact and conclusions of law indicate, however, that
she properly based her decision on the factors outlined in AS
25.20.090:2
[I]t is in the best interest of the
children to award [Ms. Farrell] sole legal
and physical custody. Joint custody is not
in the best interest of the children for the
following reasons:
a. Ms. Farrell has been the
children's primary caretaker. Due to Mr.
Farrell's work schedule, she is in the best
position to parent the children on a day-to-
day basis. Stability for the children in
their parents' decision-making would best be
served by granting sole custody to [Ms.
Farrell].
b. The parties fought bitterly
during the marriage and do not appear to have
shared decision-making. While they are to be
commended for their willingness to cooperate
in more recent times regarding visitation and
medical matters, this does not negate their
protracted history of non-cooperation. Ms.
Farrell remains fearful of Mr. Farrell, a
circumstance which militates against good
communication in the children's best
interest. The court finds the children would
be better served by knowing that they will
not be the "cause" of further friction
between their parents, and additionally by
knowing that decisions made by their mother
can be relied upon and not be changed by
recourse to their father.
c. Mr. Farrell continues to
drink. While he has not been violent towards
the children, given the damage caused to them
through the use of alcohol in their family, a
custodial parent who does not consume alcohol
would provide a better role model.
We find that Judge Katz did not disregard the legislature's
directives.
Robert next contends that Judge Katz misapplied the
criteria contained in AS 25.20.090 and AS 25.24.150. His
argument is broken down into three parts: (1) it was clearly
erroneous to find that Ruth was the primary caregiver; (2) the
domestic violence between Ruth and Robert should not have been
considered since it does not indicate that they could not
cooperate in raising the children; and (3) Robert's alcohol
consumption is irrelevant to the decision regarding joint custody
because it does not affect the children or his fitness as a
parent.
Robert's argument turns on the distinction between
legal and physical custody; he asserts that the superior court
confused the two concepts. We outlined the differences between
legal and physical custody in Bell v. Bell, 794 P.2d 97 (Alaska
1990):
[A]n award of joint custody gives both
parents "legal custody"of the child. This
means that they "share responsibility in the
making of major decisions affecting the
child's welfare."17 A.L.R. 4th 1015 n. 1.
Second, an award of joint custody gives both
parents "physical custody" of the child.
This means that "each is entitled to the
companionship of the child over periodic
intervals of time." Id.
. . . [T]he legislature [has drawn] this
distinction and expressed a policy favoring
the award of joint legal custody, regardless
of the physical custody arrangement . . . . 3
Id. at 99.
We explained that joint legal custody is only
appropriate when the parents can cooperate and communicate in the
child's best interest. In concluding that the trial court in
Bell erred by denying joint legal custody, we emphasized the
custody investigator's conclusion that the parties had the
"ability . . . to deal with each other in a civil and mutual
manner"and had "demonstrated potential to facilitate cooperation
and compromise."Id. at 100. It was also significant that the
parents agreed at trial that joint legal custody was appropriate
and testified regarding "their ability to work cooperatively in
[the child's] best interest." Id.;4 see also Lone Wolf v. Lone
Wolf, 741 P.2d 1187, 1189 (Alaska 1987) ("cooperation between
parents is essential if joint custody is to be in the child's
best interest"); McClain v. McClain, 716 P.2d 381, 386 (Alaska
1986) ("The most ardent proponents of joint custody assume
cooperation between parents and agreement about child rearing
practices as basic requirements for joint custody.").
Robert does not dispute that the test for evaluating
the propriety of joint legal custody is whether or not the
parties can cooperate and communicate regarding the children.
Rather, he asserts that the test was misapplied. In Robert's
view, his drinking and the parties' long history of domestic
violence are both irrelevant to this determination. Judge Katz
found that the history of domestic violence between the parties
made it unlikely that they would be able to communicate and
cooperate regarding the children. Robert, however, asserts that
the inability to cooperate has not been demonstrated because
"this domestic violence was mutual with both of the parties
acting the aggressor at different times"and "both spouses were
active participants in the abuse against each other."5 The fact
that the aggression was mutual does not make cooperation any more
probable. We find that Judge Katz did not err by concluding that
the parties' history of domestic violence interfered with their
ability to cooperate regarding the children.
Judge Katz also did not err in considering Robert's
drinking. Robert cites Horutz v. Horutz, 560 P.2d 397 (Alaska
1977), as stating that the lifestyle, habits, or character of a
parent are only relevant to a custody determination if they
affect the parent's relationship to the child. Robert contends
that since his drinking does not affect his relationship with the
children, it was improper for the court to consider it. It is
true that we announced this standard in Horutz, see id. at 401
nn. 15 & 16; however, at issue there was the alleged promiscuity
of the mother as shown by "the fact that [she] lived in a state
of sexual cohabitation without the benefit of marriage." As a
"character trait" Robert's drinking is significantly different
from Horutz's cohabitation; hence, our discussion in Horutz, as
well as the authorities on which we relied, are distinguishable.
Furthermore, it is probable that Robert's drinking affects the
parties' ability to cooperate and communicate. Most of the
domestic violence in the course of marriage occurred when the
parties were intoxicated, and Ruth testified that she is afraid
of Robert because he still drinks.
Finally, there is support in the record for a finding
that the parties cannot adequately communicate regarding the
children. When asked whether she and Robert have been getting
along better in the last year than they had previously, Ruth
responded, "We hardly talk."6 It appears that Ruth and Robert
only communicate through the children. Ruth testified that she
is "too scared"of Robert to assert herself if she felt really
strongly about something.
Communication and shared decisionmaking have improved
since the separation, and it is true that Robert appears to be
genuinely interested in being a good father. However, there is
adequate support in the record for the superior court's decision
to award Ruth sole custody. The court did not abuse its
discretion by giving relatively less weight to the evidence
suggesting improved communication between Ruth and Robert and
more weight to the evidence indicating insufficient
communication. See Lone Wolf, 741 P.2d at 1190.
II. The Child Support Award
Child support awards are within the broad discretion of
the trial court. They are judged using an abuse of discretion
standard and are not set aside unless after reviewing the record
as a whole we are left with a definite and firm conviction that a
mistake has been made. Richmond v. Richmond, 779 P.2d 1211, 1216
(Alaska 1989). The trial court awarded Ruth child support of
$2,162.00 per month. This is challenged on two grounds.
A. Application of Rule 90.3 to the Visitation Schedule
Robert first contends that the court erred by applying
the formula contained in Civil Rule 90.3(a) instead of the
formula in Rule 90.3(b). Rule 90.3(a) applies when one parent
has sole or primary physical custody, and 90.3(b) applies when
there is shared physical custody. There is shared physical
custody if the children reside with the parent for at least 30%
of the year or 110 overnights. See Rule 90.3 Commentary V(A). A
child must remain overnight with the parent for it to count
toward the required total. Id.
Judge Katz's decree is unclear in several respects.7
Robert interprets the decree as entitling him to 128 days of
visitation, and Ruth interprets it as entitling Robert to 109
days of visitation.8 The portion of the decree discussing Spring
Break visitation is especially ambiguous as it specifies that
Robert shall be entitled to more visitation if he takes the
children on a trip. There is also a question whether Robert's
work schedule will allow him to exercise his full visitation
rights.9 The eight weeks of summer visitation may be especially
problematic given the uncertainty in Robert's schedule and the
long periods he is required to be away from home. There also may
be some difficulty in exercising the four nights of monthly
visitation if it interferes with the children's performance in
school.10
In light of these questions, we remand to the superior
court for a specific determination of whether Robert's visitation
is above or below Rule 90.3's 30% mark. Not only will Judge Katz
be able to clarify the decree, but, since the decree will have
been in effect for over a year, she can evaluate whether Robert
has been able to exercise the full visitation to which he is
entitled.
B. Standard for Waivers of $60,000 Income
Cap Under Rule 90.3
Robert also contends that the trial court erred by
disregarding the $60,000 income cap contained in Rule 90.3(c)(2).
The provision states:
Paragraphs (a) and (b) do not apply to
the extent that the parent has an adjusted
annual income of over $60,000. In such a
case, the court may make an additional award
only if it is just and proper, taking into
account the needs of the children, the
standard of living of the children and the
extent to which that standard should be
reflective of the supporting parent's ability
to pay.
Robert argues that the requirements contained in Rule
90.3(c)(1) apply when the $60,000 cap is disregarded to the same
extent that they apply when the court deviates from the rule's
other guidelines. Rule 90.3(c)(1) states in relevant part:
The court may vary the child support
award as calculated under the other
provisions of this rule for good cause upon
proof by clear and convincing evidence that
manifest injustice would result if the
support award were not varied.
Specifically, Robert contends that the court's
disregard of the $60,000 cap was not justified by good cause
supported by clear and convincing evidence of potential manifest
injustice. We are not persuaded that the requirements of Rule
90.3(c)(1) apply to waivers of the $60,000 cap. Subsection
(c)(2) contains its own standards and does not cross-reference
(c)(1). Consequently, the additional award will be upheld "only
if it is just and proper, taking into account the needs of the
children, the standard of living of the children and the extent
to which that standard should be reflective of the supporting
parent's ability to pay."Rule 90.3(c)(2).
Judge Katz's findings show that she specifically
considered the Rule 90.3(c)(2) requirements, and adequately
explained her reasons for disregarding the $60,000 cap. We find
that she did not err in making the additional award.
III. Property Division
The parties' property subject to division consists of
real property and Robert's pension with Parker Drilling, one of
the oil companies for which he worked.11 The parties own three
adjoining lots in Kenai, and Robert built the marital residence
on one of them.12 The parties have agreed to sell the marital
residence and the two adjoining lots. No evidence was presented
regarding the market value of the house or the lots, but they
were appraised at $103,000 for property tax purposes. As of
November 4, 1986, approximately $13,000 was owed on the
properties. Robert continued to make payments, and the debt had
been reduced to $2,188 at the time of trial.
The superior court ruled that Ruth should receive 70%
of proceeds from the sale of the real property and Robert should
receive the remaining 30%. Robert was ordered to pay the
remaining debt. The court denied Ruth's request for
rehabilitative and reorientation alimony finding that her
"support needs can be taken care of by awarding her a greater
than 50% share of the net proceeds from the sale of the real
property and marital residence."
The factors to be considered by the trial court in
determining alimony and division of property questions are:
the respective ages of the parties;
their earning ability; the duration and
conduct of each during the marriage; their
station in life; the circumstances and
necessities of each; their health and
physical condition; their financial
circumstances, including the time and manner
of acquisition of the property in question,
its value at the time and its income
producing capacity if any.
Merrill v. Merrill, 368 P.2d 546, 547-48 n.4 (Alaska 1962).
Robert contends that the superior court overlooked
several important factors in deciding on a 70-30 split of the
real estate. He directs us to our statement that "[i]t is
generally presumed that a 50-50 property division is the most
equitable starting point." Jones v. Jones, 666 P.2d 1031, 1034
(Alaska 1983). However, we have held repeatedly that a spouse's
support needs should be met through property division. See,
e.g., Richmond v. Richmond, 779 P.2d 1211, 1215 (Alaska 1989);
Dixon v. Dixon, 747 P.2d 1169, 1173 (Alaska 1987) ("When a couple
has sufficient assets, the spouse with the smaller earning
capacity can and should receive a larger share in the property
distribution to aid him or her in this transition."). In light
of Ruth and Robert's greatly disparate earning potential, we find
that Judge Katz did not abuse her discretion in weighting the
property division in Ruth's favor.13
For the reasons stated, the judgment is affirmed as to
the award of child custody and the division of property, and
vacated and remanded with respect to the award of child support.
AFFIRMED in part, VACATED in part, and REMANDED for
further proceedings.
RABINOWITZ, Chief Justice, dissenting in part.
Given the legislatively mandated presumption in favor
of shared legal custody, and upon consideration of the relevant
evidence in the record, I conclude that the superior court erred
in denying Robert shared legal custody of the parties' children.14
Here the evidence shows that over a significant period of time
prior to trial Robert and Ruth were able to communicate and
cooperate to the extent of making decisions concerning visitation
and the children's upbringing. Neither the parties' past history
of domestic violence nor Robert's drinking appears to have
prevented adequate communication between the parties or their
ability to reach decisions concerning visitation and the
children's needs.
I would therefore reverse the superior court's custody
decision and remand with directions to enter a decree which
provides for shared legal custody.
_______________________________
1 In an act amending AS 25.20.060, the legislature
distinguished legal and physical custody and expressed a
preference for joint legal custody:
The legislature finds 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.
An Act Relating to Child Custody, ch. 88 1(a), SLA 1982, quoted
in Bell v. Bell, 794 P.2d 97, 99 (Alaska 1990).
2 AS 25.20.090 states:
In determining whether to award shared
custody of a child the court shall consider
(1) the child's preference . . . ;
(2) the needs of the child;
(3) the stability of the home
environment likely to be offered by each
parent;
(4) the education of the child;
(5) the advantages of keeping the
child in the community where the child
presently resides;
(6) the optimal time for the child
to spend with each parent considering
(A) the actual time spent with each
parent;
(B) the proximity of each parent to the
other and to the school in which the child is
enrolled;
(C) the feasibility of travel between
the parents;
(D) special needs unique to the child
that may be better met by one parent than the
other;
(E) which parent is more likely to
encourage frequent and continuing contact with the
other parent;
(7) any findings and
recommendations of a neutral mediator;
(8) any evidence of domestic
violence, child abuse, or child neglect in
the proposed custodial household or a history
of violence between the parents;
(9) evidence that substance abuse
by either parent . . . directly affects the
emotional or physical well-being of the
child;
(10) other factors the court
considers pertinent.
3 The legislature's statement is quoted supra at note 1.
4 This case is easily distinguished from Bell. Here, there
were no findings or testimony that the parents could cooperate in
the children's best interest. Furthermore, there was no evidence
in Bell of domestic violence or alcohol abuse; the only parenting-
related dispute concerned the proper day care provider.
5 Robert also alleges that the last act of violence between
the parties was in May of 1986, three years before trial. Ruth,
however, disagrees and contends that in October of 1988 a fight
broke out regarding Robert's visitation with one of the children.
As a result, an emergency domestic violence order and a 90-day
domestic violence order were issued.
6 When pressed, she, however, admitted, "As far as the kids
are concerned? I guess so."
7 The decree states:
a. He shall visit with the children two
weekends during each month, to be determined
by his work schedule. If it appears probable
to him that he will not have two weekends at
home during any particular month, he may have
the children for up to five days during the
week.
b. This arrangement for weekday
visitation shall be subject to modification
if either party receives a report from the
children's teachers that the children are
responding differently to classroom
activities during periods in which they
reside with Mr. Farrell.
. . . .
d. Assuming [Mr. Farrell's]
availability, he shall visit with the
children for five consecutive days during the
school spring vacation and for seven
consecutive days during the school Christmas
vacation. [Mr. Farrell] may have the
children for the entire spring vacation
should he take them on a trip during that
time. The parties shall alternate the major
holidays [Thanksgiving and Christmas days] to
the extent practicable pursuant to [Mr.
Farrell's] schedule. . . . The children shall
also visit with Mr. Farrell on Father's Day
and Ms. Farrell on Mother's Day.
5. Mr. Farrell is granted summer
visitation as follows: He shall visit with
the children for up to one month at a time
when he is not working. His total summer
visitation shall not exceed eight weeks.
8 The difference between Robert's and Ruth's total
visitation time is in part the result of Robert counting days
instead of nights, and his misreading of the decree. Robert
counted seven nights for Spring Break while the decree awarded
only four. He also counted two months of summer visitation even
though the decree specifies a maximum of eight weeks.
9 The court found that Robert's work schedule would make
scheduling visitation somewhat difficult.
10 The commentary to Rule 90.3 discusses the potential
problem of basing a finding of shared custody on a visitation
schedule that is as speculative as this one is:
One difficulty with tying the amount of
support in shared custody cases to the amount
of time each parent is expected to spend with
the children is that parents often fail to
exercise visitation. If this regularly
occurs, the custodial parent may be forced to
seek a modification based on the failure to
exercise visitation.
Commentary V(D).
11 The ruling that the $3,600 from the pension plan should be
split 50-50 is not contested.
12 The residence was not finished at the time of trial and
was inadequately heated.
13 Robert contends that the trial court failed to credit him
with post- separation payments he made which reduced the debt on
the real property awarded to Ruth, thus creating a further
imbalance in the real property award. It appears, however, that
the trial court considered these payments in reducing interim
child support in an amount which over time roughly offset the
debt reduction. The court did not err in failing to give further
credits to Robert.
14 AS 25.20.060.
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