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Pinneo v. Pinneo (6/30/92), 835 P 2d 1233
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Notice: Names of children have been altered
to protect identities at the request of the
children themselves.
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
KIM ELIZABETH PINNEO, )
) Supreme Court No. S-4470
Appellant, ) Superior Court No.
) 3AN-85-12872 Civil
v. )
)
KENNETH WAYNE PINNEO, ) O P I N I O N
)
Appellee. ) [No. 3860 - June 30, 1992]
)
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage,
Mark C. Rowland, Judge.
Appearances: D. Scott Dattan, Law
Office of D. Scott Dattan, Anchorage, for
Appellant. Paula Williams, Law Office of
Paula Williams, Anchorage, for Appellee.
Before: Rabinowitz, Chief Justice,
Burke, Matthews, Compton and Moore, Justices.
COMPTON, Justice.
Samantha Hall, formerly Kim Elizabeth Pinneo, appeals
from a Decree of Custody which modified a prior
arrangement by which she had custody of her two minor
daughters. The decree granted legal and physical
custody of the two children to their father, Kenneth
Wayne Pinneo. Hall contends that the superior court
lacked jurisdiction to enter the decree. She further
contends that critical findings of fact were not
supported by the evidence and that the court abused its
discretion in awarding custody of the children to
Pinneo.
I. FACTUAL AND PROCEDURAL BACKGROUND
Hall and Pinneo were married in 1980. Two daughters
were born during the marriage, D*** on August 6,
1981 and S*** on October 10, 1982. Hall and Pinneo
were divorced in 1985. They agreed that Hall be
awarded sole legal and physical custody of the children
and Pinneo reasonable visitation rights, as well as an
ongoing child support obligation. Hall remarried in
the fall of 1987.
In October 1987 Pinneo filed a motion asking for
specific visitation privileges. He contended that Hall
was hindering his visitation with the children,
including failing to disclose their current address.
Hall alleged that Pinneo had sexually abused one of the
children. In November 1987 and January 1988, Trial
Court Master Andrew M. Brown heard arguments and
testimony on Pinneo's motion. Master Brown concluded:
The evidence is clear that there
has been a change of circumstances justifying
modification of the Decree of Divorce's
visitation terms. The parties have not been
able to reasonably communicate concerning
visitation. Ms. Hall's fears of Mr. Pinneo
having sexually abused, touched or contacted
S*** are without foundation, but have impeded
her willingness to deal with Mr. Pinneo on
reasonable visitation arrangements.
Master Brown's report was approved by superior court
order dated February 15, 1988. The order modified
Pinneo's visitation rights and directed that neither
party remove the children from Alaska without the
written consent of the other or court approval.
In March 1988 Hall moved to Washington with the
children. The parties dispute whether Pinneo gave his
permission for the move. After eight weeks in
Washington, Hall moved to Texas with the children and
her new husband, Mr. Hall. In October, after the
parties could not agree on an out-of-state visitation
schedule, Pinneo filed a second motion for modification
of visitation rights. The court ordered a custody
investigation.
In February 1989 the Halls divorced. Samantha Hall
moved to California with the children. In June she
filed a motion to increase Pinneo's child support
obligation, pursuant to Alaska Civil Rule 90.3. Pinneo
moved for a change of child custody in June, while his
Motion for Modification of Visitation was still
pending. Hall opposed Pinneo's custody motion on the
merits. She also argued that the Alaska courts lacked
jurisdiction to determine custody of the children. In
May 1990 Hall moved back to Texas with the children and
reunited with Mr. Hall.
Trial of the custody dispute was held in Anchorage in
January and February 1991. After Superior Court Judge
Mark C. Rowland addressed arguments regarding
jurisdiction,1 the trial proceeded. Judge Rowland
awarded immediate legal custody of the children to
Pinneo. He directed that the children reside with Hall
through the remainder of the 1990/1991 school year,
awarding Pinneo physical custody of the children
thereafter. He awarded Hall visitation rights during
the summers and certain holidays. Hall appeals.
Hall contends the court erred by assuming subject
matter jurisdiction over the custody dispute and
further erred by failing to later decline jurisdiction
as an inconvenient forum. She also argues that the
court abused its discretion when it ordered a change in
custody, because no substantial change in circumstances
occurred and because the court improperly balanced the
nine statutory criteria relevant to a custody issue.
She argues that some of the court's findings of fact
were not supported by the evidence.
II. STANDARDS OF REVIEW
In this case, the trial court found jurisdiction to
determine custody on the basis of AS 25.30.020(a)(3).2
We have independently reviewed jurisdictional facts in
determining whether jurisdiction was properly assumed
under the statute. See, e.g., S.J. v. L.T., 727 P.2d
789, 793 (Alaska 1986). However, a trial court's
assumption of jurisdiction on the basis of the "best
interests"of the children is reviewed under an abuse
of discretion standard. Id. at 794. We review a
court's decision to decline jurisdiction as an
inconvenient forum for abuse of discretion. Szymd v.
Szymd, 641 P.2d 14, 18 (Alaska 1982).
"This court will only disturb the trial court's
resolution of custody issues [such as determinations
regarding substantial changes in circumstances] _if the
record shows an abuse of discretion or if controlling
findings of fact are clearly erroneous._" House v.
House, 779 P.2d 1204, 1207 (Alaska 1989) (quoting Faro
v. Faro, 579 P.2d 1377, 1379 (Alaska 1978)).
III. DISCUSSION3
A. JURISDICTION
Alaska has adopted the Uniform Child Custody
Jurisdiction Act (UCCJA), AS 25.30. An Alaska court
may determine or modify child custody only if the
jurisdictional prerequisites of AS 25.30.020(a) are
met. Szymd, 641 P.2d at 16-17. Further, courts in
Alaska must evaluate jurisdiction under the UCCJA
afresh at the time of the motion for modification.
Baumgartner v. Baumgartner, 788 P.2d 38, 40 (Alaska
1990) ("Jurisdiction to modify custody must exist at
the time of the motion to modify, and cannot relate
back to that of the original decree.").
On the first day of trial in this case, the court
determined that it had jurisdiction under AS
25.30.020(a)(3).4 The court asserted jurisdiction
through an application of the analysis set out in Szymd
to the facts in this case.5 We conclude that the court
did not err in its analysis.
Szymd contains the following discussion regarding
jurisdiction under AS 25.30.020:
Subsection (1) is not met because Alaska
has not been the child's home state for over
two and one-half years. Nor is subsection
(2) applicable on these facts. Alaska does
have jurisdiction under subsection (3),
however, because neither California nor
Washington, the only other states in which
the child has lived, could assert
jurisdiction substantially in accordance with
subsections (1) or (2), on the facts of this
case. Subsection (1), the only possibly
applicable provision, could not be satisfied
by either state as of December 5, 1980, the
date the motion for a change of custody was
filed and the relevant measuring date.
Szymd, 641 P.2d at 18.
We noted in Szymd that the child had only resided in
California for approximately three months as of
December 5, 1980. Therefore, California was not a
"home state"under AS 25.30.900(5). Id. at 18 n.10.
The opinion gives no indication that the parties
contested whether California had jurisdiction under its
"significant connection"test, although we noted that
Alaska has not adopted the "significant connection"
basis for jurisdiction. Id. at 18 n.8.
Hall contends that "the superior court failed to
inquire whether no other state could exercise
jurisdiction in substantial compliance with Alaska's
enactment of the UCCJA, and thereby abused its
discretion in accepting jurisdiction." Hall contends
generally that California could have asserted
jurisdiction under its "significant connection"test.6
We decline Hall's invitation to adopt a rule that a
trial court must independently determine that no other
state is a proper forum before asserting jurisdiction
under AS 25.30.020(a)(3). If a party to a custody
dispute believes that another state has jurisdiction
under prerequisites substantially in accordance with AS
25.30.020(a)(1) or (2), that party bears the burden of
presenting the court with evidence which, if
unexplained or uncontradicted, would support a finding
that the other state has jurisdiction.
Hall raised the contention that California might have
jurisdiction over this matter. Hall had control over
whatever evidence might have demonstrated a significant
connection with California. "The party asserting a
fact generally bears the burden of proving that fact.
This is particularly true when the party asserting a
fact controls the evidence which bears upon that fact."
Sloan v. Jefferson, 758 P.2d 81, 83 (Alaska 1988)
(citations omitted). In this case, Hall simply failed
to carry her burden of proof. Based on our review of
the record, we conclude that Hall failed to present the
trial court with evidence which, if unexplained or
uncontradicted, would support a finding that there was
a "significant connection"with California.7
Judge Rowland never clearly addressed the second
element of AS 25.30.020(a)(3), which requires that
assumption of jurisdiction be in the "best interests"
of the children. However, as a practical matter, he
effectively evaluated the best interests of the
children where he made explicit findings regarding the
inconvenient forum issue discussed below. Thus any
error in this respect is harmless.
Therefore, we conclude that the trial court had
jurisdiction to modify the child custody award in this
case under AS 25.30.020(a)(3).8
B. INCONVENIENT FORUM
Under AS 25.30.060, a court may decline to exercise its
jurisdiction any time before issuing a decree if in its
discretion it finds that it is an inconvenient forum or
finds that a court of another state is a more
appropriate forum. AS 25.30.060(a). The court must
consider the best interests of the child and may take
into account several statutory factors in making this
determination. AS 25.30.060(c). In this case, the
court determined that it was not an inconvenient forum.
Hall contends that in determining whether Alaska was an
inconvenient forum the court abused its discretion
because it did not consider the interests of the
children as required by AS 25.30.060 and Szymd. Hall
argues that the court misinterpreted the third
statutory factor regarding the location of the best
evidence,9 and that the court gave too much
consideration to the nonstatutory factors of relative
hardship to the parties and the timing of the motion.
She argues that the expert testimony submitted by
Pinneo lacked substance regarding the children's
present status and relationship with their mother.
In conformity with our directions in Szymd, 641 P.2d
at 19, the court in this case articulated its reasons
for denying Hall's inconvenient forum motion. In
making its determination to retain jurisdiction, the
court expressly considered the statutory factors
established at AS 25.30.060.10 In addition, the trial
court focused heavily on the nonstatutory factor of the
timing of Hall's inconvenient forum motion.
We do not think it improper for a court to consider the
timing of an inconvenient forum motion as it considers
the location of necessary evidence. In this case, the
court found that Hall waited until the day of trial to
raise inconvenient forum concerns. Hall, the children
and an expert witness had flown to Alaska for the
trial. Other witnesses and evidence had been
assembled.11 Judge Rowland specifically found that "to
allow a motion such as this to be considered on the day
of trial . . . when all are present, would do more to
contravene the purposes of the Uniform Act [than]
anything else." In light of these facts and findings,
we cannot conclude that the court abused its discretion
in determining that it was in the best interests of the
children that the custody trial proceed in Alaska.
C. THE COURT DID NOT ABUSE ITS DISCRETION
IN GRANTING CUSTODY TO PINNEO
Hall contends that there was no significant change in
circumstances which justified a modification of
custody, that the court's findings of fact were clearly
erroneous, and that the court disregarded the best
interests of the child. Hall also argues that the
court assigned too much weight to "the desire and
ability of each parent to allow an open and loving
frequent relationship between the child and the other
parent." AS 25.24.150(c)(6).
In this case, the court determined that the original
custody order should be modified and that custody of
the children should be awarded to Pinneo. We conclude
that the court's findings are adequately supported by
evidence and that the court did not abuse its
discretion in making this determination. See Faro v.
Faro, 579 P.2d 1377, 1379 (Alaska 1978).
A court may not modify an existing custody arrangement
unless it determines that "a change in circumstances
requires the modification of the award and the
modification is in the best interests of the child."
AS 25.20.110.
Evidence in the record supports the court's
determination that a change in circumstances required
modification of the existing custody award. The court
did not clearly err in finding that Hall took the
children from Alaska to Washington without Pinneo's
permission. The record citations Hall provides do not
persuasively show otherwise. Further, the court did
not err in determining that Hall's move from Alaska to
Washington and her series of relocations from
Washington to Texas to California and back to Texas
constituted substantial changes in circumstances. See
House v. House, 779 P.2d 1204, 1208 (Alaska 1989)
(holding that the custodial parent's decision to
relocate children from Alaska to California constitutes
a substantial change in circumstances). We
are not persuaded that the court's modification of
custody was inconsistent with the best interests of the
children. Judge Rowland's decision to place the
children in Pinneo's custody was based in large part on
his findings of a detrimental and well established
pattern of behavior on the part of Hall to "erode[] the
bonds of love and affection between the father and the
children."12 These findings are supported by
evidence and are not clearly erroneous. Following a
thorough investigation, Alaska Custody Investigator
John Hanscom recommended in a report dated January 24,
1991, that the children be placed in the custody of
Pinneo. Among the reasons for Mr. Hanscom's
recommendation was his conclusion that "Pinneo . . .
appears to have the greater desire and ability to allow
an open and loving frequent relationship between the
children and the other parent." Moreover, William I.
McAdoo, Jr., Ph.D., a clinical psychologist, found as
follows:
Mrs. Hall appears to have been willful
in her efforts to deny Mr. Pinneo visitation
over a period of years and that false
allegations, constant relocations, not
providing simple information such as
telephones and addresses over and over again,
was abusive and not in the best interests of
the children in this case.
In light of the court's finding that the existing
custody arrangement placed the relationship of the
father and the children at risk we cannot conclude that
the court abused its discretion by granting custody of
the children to Pinneo.
Hall's argument that the court gave too much weight to
one statutory factor is grounded in her assertions that
statements in Mr. McAdoo's report were false.
Evaluations of credibility are within the province of
the trial court. Parker v. Northern Mixing Co., 756
P.2d 881, 892 (Alaska 1988). The court did not clearly
err in relying on the report of Mr. McAdoo especially
in light of the court's finding that "Hall has not been
a credible witness in these proceedings."
The judgment of the court is AFFIRMED.
_______________________________
1. Hall submitted to this court an emergency petition for
review of the jurisdictional issues. The petition was
denied.
2. AS 25.30.020 provides as follows:
(a) The superior court has
jurisdiction to make a child custody
determination by initial or modification
decree if the conditions set out in any of
the following paragraphs are met:
(1) this state (A) is the home
state of the child at the time of
commencement of the proceeding, or (B) had
been the child's home state within six months
before commencement of the proceeding and the
child is absent from this state because of
removal or retention by a person claiming
custody or for other reasons, and a parent or
person acting as parent continues to live in
this state; or
(2) the child is physically
present in this state and is a child in need
of aid as defined in AS 47.10.990; or
(3) it (A) appears that no other
state would have jurisdiction under
prerequisites substantially in accordance
with (1) or (2) of this subsection, or
another state has declined to exercise
jurisdiction on the ground that this state is
the more appropriate forum to determine the
custody of the child, and (B) is in the best
interest of the child that this court assume
jurisdiction.
(b) Except under (a)(2) and (3) of
this section, physical presence in this state
of the child, or of the child and one of the
contestants, is not alone sufficient to
confer jurisdiction on a court of this state
to make a child custody determination.
(c) Physical presence of the
child, while desirable, is not a prerequisite
for jurisdiction to determine the child's
custody.
3. Besides the three issues discussed below, Hall contends
in her opening brief that the court erred in failing to
address her motion for modification of child support.
However, in her reply brief she concedes that no final
order addressed her motion. We decline to review the
matter as it is not properly before this court. Alaska
R. App. P. 202(a).
4. We have acknowledged the Commissioners' Note to
subsection (a)(3) which states that this subsection "is
to be resorted to only if no other state could, or
would, assume jurisdiction under the other criteria of
this section." S.J. v. L.T., 727 P.2d at 792 (quoting
UCCJA 3, 9 U.L.A. 124 (1979)).
5. The court's oral findings regarding jurisdiction and
inconvenient forum were not made a part of the record
on appeal. However, Pinneo has attached a portion of
the trial transcript which includes the court's
findings as Appendix 1 to his brief. Hall does not
dispute the authenticity of the transcript.
6. The California statute provides in part:
(1) A court of this state which is
competent to decide child custody matters has
jurisdiction to make a child custody
determination by initial or modification
decree if the conditions as set forth in any
of the following paragraphs are met:
. . . .
(b) It is in the best interest of
the child that a court of this state assume
jurisdiction because (i) the child and his
parents, or the child and at least one
contestant, have a significant connection
with this state, and (ii) there is available
in this state substantial evidence concerning
the child's present or future care,
protection, training, and personal
relationships.
Cal. Civil Code 5152 (West 1983).
7. Hall argues that her contention that California may
have had jurisdiction to determine this dispute is
supported by language in Kimmons v. Heldt, 677 P.2d
1245 (Alaska 1983). Interpreting AS 25.30.050(a), this
court held in Kimmons that the "_significant
connections_ basis of jurisdiction available in
California is consistent with this purpose of the
[UCCJA] and is therefore in substantial conformity with
the [UCCJA] as adopted in this state." 667 P.2d at
1249. Because of Hall's failure to carry her burden of
proof, we need not examine the application of Kimmons
to this case.
8. Pinneo argues that an entirely separate basis for
jurisdiction exists. Pinneo contends that since his
October 11, 1988 Motion to Modify Visitation and
related custody investigation were still pending in
June 1989, California would not have been able to
assert jurisdiction. In light of our holding above, we
need not address this argument.
9. Among other factors, AS 25.30.060 suggests that in
determining if it is an inconvenient forum, the court
should consider "if better evidence concerning the
child's present or future care, protection, training,
and personal relationships is available in another
state, or if equally substantial evidence is more
readily available in another state." AS
25.30.060(c)(3).
10. Denying Hall's motion that the court find Alaska to be
an inconvenient forum, Judge Rowland found as follows:
I am bound to make certain findings
in this matter. I will say at the outset,
the most important finding I will make is
that the relief sought was only pressed on
the day of trial.
It appears to me that the home
state at the time of hearing, which is
appropriate to consider, would be Texas. At
the time the motion was filed, apparently the
children had no home state.
The children have had little
connection with the state of Alaska for some
period of time. As far as considering where
the most likely source of information would
be, I really have little information to
determine that. I can say, however, that
since the motion was really pressed today,
and today is the date of trial, that this is
the day that should be considered. And it
appears to me that the information is most
readily available here, and the parties are
here. The witnesses are here. And I see no
reason why this wouldn't be the most likely
state in terms of it being the most
appropriate source of information.
Clearly, if this matter had been
brought up some time ago, that consideration
would be quite different.
Likewise, in determining where the
greater hardship lies, it appears to me that
that should be determined at the time that
the motion is pressed as well. And
determining that today, I could say clearly
that the hardship would be greater on the
father if this court would declare itself on
this date, an inconvenient forum and require
the parties to seek their remedies elsewhere.
I also think that to allow a motion
such as this to be considered on the day of
trial when all present -- when all are
present, would do more to contravene the
purposes of the Uniform Act and anything else
[sic].
11. Hall made passing reference to evidence in Texas that
the court should have considered. In making an
inconvenient forum determination, a court must not
casually dismiss claims that better evidence exists in
another jurisdiction. However, we find nothing in the
record which demonstrates that Hall offered proof
regarding specific witnesses or other evidence she felt
were necessary to determine the best interests of the
children which were not available in Alaska. Absent
such an offer of proof, there is no basis upon which we
could say that the court abused its discretion.
12. Among other things, the court found as follows:
3. The court finds that it has
been established by clear and convincing
evidence that the best interests of these
children is that a change of custody occur at
this time.
4. The court finds that the
mother's pattern of behavior has been
directed toward eroding the bonds of love and
affection between the father and the
children. The court finds that evidence of
the mother's attempts to erode the bond
include, but are not limited to, the fact
that she has limited the father's access to
the children by various means described in
the testimony heard at trial.
5. The court finds that it is in
the best interests of the children that the
bonds of love and affection between them and
their father not only be preserved, but that
they be rebuilt. If the bonds are allowed to
deteriorate or are destroyed, the court finds
that it will have a significant negative
effect on the children not only now, but in
the future.
6. The court finds that if the
children are continued in the custody of
their mother, this well-established pattern
on the part of the mother to erode [sic] the
bonds between the father and the children
will continue.
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