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H. Hakas v. W. Bergenthal (12/24/92), 843 P 2d 642
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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
HILDUR HAKAS, ) Supreme Court Nos.
) S-3708, S-4276
Appellant, )
) Superior Court No.
v. ) 3AN-87-6131 CIVIL
)
WILLIAM J. BERGENTHAL, ) O P I N I O N
)
Appellee. )
______________________________) [No. 3907, December 24, 1992]
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage,
Victor D. Carlson, Judge.
Appearances: James L. Johnston,
Anchorage, for Appellant, Cheri C. Jacobus,
Ross, Gingras, Bailey, & Miner, Anchorage,
and Kenneth P. Jacobus, Anchorage, for
Appellee.
Before: Rabinowitz, Chief Justice,
Burke, Matthews, Compton, and Moore,
Justices.
RABINOWITZ, Chief Justice.
When this matter was last before this court we
concluded that:
Given Hakas' concessions that she
was a resident of Alaska on August 19, 1987
when Bergenthal filed his petition for
custody of Jarle, we have determined that the
Memorandum Opinion and Judgment issued in
this case on June 27, 1990 must be vacated
and withdrawn. We now retain jurisdiction
for purposes of deciding Hakas' second
specification of error in her original
appeal, namely, whether the superior court
erred in awarding custody of Jarle to
Bergenthal as a sanction without considering
the best interests of the child.1
Hakas v. Bergenthal, MO&J No. 617, page 7, May 20, 1992.
In awarding custody to Bergenthal in its
partial final judgment of July 27, 1989, the
superior court concluded that Hakas: [H]as
wrongly retained the child in Norway,
contrary to the orders of this court, and
prevented the defendant from exercising his
natural rights to visitation and his court-
ordered rights to visitation and custody by
such wrongful retention.
Additionally, in findings of fact and conclusions of
law dated December 4, 1989, the superior court noted that Hakas
failed to comply with the court's orders that the parties make an
appointment with the custody evaluator and that Hakas bring Jarle
to Alaska during the month of April to allow Bergenthal one week
of visitation with Jarle and to make herself and Jarle available
to the court custody evaluator. The findings of fact also state
that in response to the court's order to show cause why Hakas
should not be held in contempt:
The plaintiff failed to appear, except
through counsel, and failed to show cause why
she should not be found in contempt. It is
clear, therefore, that the plaintiff has
breached Mr. Bergenthal's rights of custody
and visitation with the parties' minor child,
Jarle Ivan Hakus-Bergenthal, under the laws
of this state in which the child was
habitually resident immediately before the
child was removed. It is clear, further,
that since the plaintiff has removed the
child, plaintiff has prevented the defendant
from exercising his rights to custody and
visitation as a result of that removal and
retention of the child. The plaintiff has
wrongfully retained the child in Norway,
contrary to the orders of this court, and
prevented the defendant from exercising his
natural rights to visitation and his court-
ordered rights to visitation and custody by
such wrongful retention.2
On the basis of these findings the superior court
entered a partial final judgment which ordered that Bergenthal
"be awarded full care, custody and control of the minor child of
the parties, Jarle Ivan Hakas-Bergenthal, . . . with reasonable
rights of visitation in . . . [Hakas]."
A best interest of the child inquiry is an essential
component of a custody determination, whether it is in the
context of an initial custody determination or modification of an
existing custody arrangement. Nichols v. Mandelin, 790 P.2d 1367
(Alaska 1990). This inquiry is not obviated by Hakas'
noncooperation.3 In making a custody determination the court
must consider "all relevant factors including those enumerated in
AS 25.24.150(c)." AS 25.20.060(a).4 Contrary to Bergenthal's
assertions, review of the record reveals no express consideration
by the superior court of Jarle's best interests in any context.
Rather, review of the superior court's findings persuades us that
the superior court awarded custody of Jarle to Bergenthal as a
sanction against Hakas without undertaking a best interests of
the child analysis.
Given the foregoing we hold that the superior court's
award of custody of Jarle to Bergenthal must be vacated and the
matter remanded to the superior court for the purpose of
redetermining custody based upon a best interests of the child
analysis with appropriate findings of fact which address all
relevant criteria of AS 25.24.150(c).5
The superior court's award of custody is VACATED and
the matter REMANDED to the superior court for further proceedings
not inconsistent with this opinion.
_______________________________
1. The parties were also given the opportunity of filing
supplemental briefs. Hakas v. Bergenthal, MO&J No. 617, page 8
(May 20, 1992).
2. The superior court also entered the following relevant
findings of fact:
By the 15th day of November, 1988,
plaintiff still had not complied with this
court's order of July 12, 1988, wherein this
court directed the parties to make an
appointment with the child custody evaluator
within 10 days. As a result, the defendant
filed a Motion for Order to Compel.
Defendant pointed out that he and his son had
not seen each other in over a year and a
half. The defendant also filed exhibits with
this court showing that large amounts of
correspondence he attempted to initiate with
his son had been returned. The defendant
also sought to visit with the child over the
Christmas Holidays.
On the 21st day of December 1988,
this court directed the plaintiff to bring
the minor child to the State of Alaska during
the month of April, 1989, and make herself
and the child available to the court custody
evaluator. This court further granted the
defendant one week's visitation during the
month of April, 1989, in the State of Alaska.
Again, the plaintiff failed to
comply with this court's order. In May 1989,
the defendant filed an Order to Show Cause
against the plaintiff, Hildur Hakus, seeking
temporary custody of the child, asking the
court to require the plaintiff to appear to
show cause why she should not be found in
contempt, and pointing to this court that the
defendant, by this time, had had no
visitation with his son for two years nor any
contact whatsoever with his son during that
period.
On the 24th of May 1989, this court
granted the Order to Show Cause and directed
the plaintiff to appear to show cause why she
should not be held in contempt for failing
and/or refusing to comply with the terms of
this court's order. This court also granted
Mr. Bergenthal interim custody of the minor
child.
3. See, e.g., Lee v. Cox, 790 P.2d 1359, 1364 (Alaska 1990)
(paramount concern in child custody determinations is the child's
welfare not the parent's wishes). See also Ashlock v. District
Court, 717 P.2d 483, 485 (Colo. 1986) (en banc) ("A change in
custody may not be ordered to punish a custodial parent for
removing a child from the jurisdiction of the court or for
secreting the child to prevent visitation by the other parent.")
(citations omitted); In re Marriage of McGee, 613 P.2d 348, 350
(Colo. App. 1980) ("It is the well-being of the child rather than
the reward or punishment of a parent that ought to guide every
aspect of a custody determination. . . ."); In re custody of
Potts, 404 N.E.2d 446 (Ill. App. 1980) (concluding that the
respondent's removal of the children from the state and her
failure to appear in court and to respond to a notice of
deposition was not sufficient grounds for a change of custody);
Everett v. Everett, 433 So.2d 705, 708 (La. 1983) ("Custody
should not be changed when to do so would punish a parent for
past behavior when there is no proof of a detrimental effect on
the child. . . ."); Bylinski v. Bylinski, 181 N.W.2d 283, 284
(Mich. App. 1970) (holding that the trial court could not order a
change in custody as a punishment for contempt); Joseph E.H. v.
Jane E.H., 423 A.2d 739, 742 (Pa. Super. 1980) ("Although we do
not condone the conduct of the mother in shunning the September
14 hearing, we are ever mindful of the fundamental fact that 'in
all custody disputes, the best interests of the child must
prevail; all other considerations are deemed subordinate to the
child's physical, intellectual, moral and spiritual well-being.'"
(citations omitted)).
4. Alaska Statute 25.20.060. Petition for award of child
custody, provides:
(a) If there is a dispute over
child custody, either parent may petition the
superior court for resolution of the matter
under AS 25.20.060 - 25.20.130. The court
shall award custody on the basis of the best
interests of the child. In determining the
best interests of the child, the court shall
consider all relevant factors including those
factors enumerated in AS 25.24.150(c).
AS 25.24.150(c) further provides:
(c) The court shall determine
custody in accordance with the best interests
of the child under AS 25.20.060 - 25.20.130.
In determining the best interests of the
child the court shall consider
(1) the physical, emotional, mental,
religious, and social needs of the child;
(2) the capability and desire of each
parent to meet these needs;
(3) the child's preference if the child
is of sufficient age and capacity to form a
preference;
(4) the love and affection existing
between the child and each parent;
(5) the length of time the child has
lived in a stable, satisfactory environment
and the desirability of maintaining
continuity;
(6) the 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.
5. We find Bergenthal's reliance on AS 25.30.100(6)
unpersuasive. This statute provides as follows:
If a party to the proceeding whose
presence is desired by the court is outside
this state with or without the child, the
court may order that the notice given under
AS 25.30.040 include a statement directing
that party to appear personally with or
without the child and declaring that failure
to appear may result in a decision adverse to
that party.
Assuming without deciding that this statute obviates the need for
a best interest of the child determination, we note that the
superior court did not rely on this statute in formulating any of
its interlocutory orders. More specifically, none of the
superior court's relevant orders explicitly apprised Hakas that
failure to appear could result in a custody decision adverse to
her.
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