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M. Evans v. D. Evans (3/11/94), 869 P 2d 478
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Notice: This is subject to formal correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage, AK
99501.
THE SUPREME COURT OF THE STATE OF ALASKA
MARIE EVANS, ) Supreme Court No. S-5818
)
Appellant, ) Superior Court No.
) 4FA-92-1478 CI
vs. )
)
DON EVANS, )
) O P I N I O N
Appellee. )
_________________________) [No. 4066 - March 11, 1994]
Appeal from the Superior Court of the
State of Alaska, Fourth Judicial District,
Fairbanks,
Jay Hodges, Judge.
Appearances: Julie A. Smith, Law Office
of Teresa L. Brimner, Fairbanks, for
Appellant. Christopher E. Zimmerman, Call
Barrett & Burbank, Fairbanks, for Appellee.
Before: Moore, Chief Justice,
Rabinowitz, Matthews and Compton, Justices,
Bryner, Justice, pro tem.*
BRYNER, Justice, pro tem.
This appeal arises from a divorce proceeding between
Marie and Don Evans in which the superior court awarded Don
primary physical custody of the Evans' two children, Jon Paul and
Portia. On appeal, Marie challenges the custody order. We
affirm.
I. BACKGROUND
Marie and Don were married on November 24, 1984. Marie
had a son from a previous marriage, Jon Paul, who was born on
November 9, 1980. Don adopted Jon Paul in 1986. The parties had
a second child, Portia, who was born on September 8, 1985. The
parties separated in June 1992, and Don filed for divorce on
August 20, 1992. Both parties requested primary physical custody
of the children, although both agreed that shared legal custody
was appropriate. At the time of trial, Marie was engaged to be
married to Sergeant Roger Hare, who was stationed at Eielson Air
Force Base near Fairbanks and had two children of his own from a
prior marriage.
On March 22-25, 1993, the issue of custody was tried
before the superior court. Don and Marie testified and presented
various witnesses. Don called on his mother, Violet Evans, and
two friends, Gary and Barbara Pitsenberger, to testify in support
of his request for custody. Marie called her fiance, Roger Hare,
and a friend, Stephanie Stowman, to testify on her behalf.
Additionally, Marie presented testimony from the court-appointed
child-custody investigator, Barry Levit, and the children's
school counselor, Valerie Demming.
After considering the evidence presented at trial, the
superior court found Don and Marie equally capable of providing
for the best interests of the children under the statutory
criteria specified in AS 25.24.150(c). The court went on to
find, however, that the children would benefit from continuing to
live in the family residence, which Don had retained, and from
avoiding the potential stress of adjusting to a new family
setting involving two other children. Concluding that these
factors tipped the balance in Don's favor, the court gave Don
primary physical custody of both children during the school year
and Marie primary physical custody during the summer months.1
II. DISCUSSION
Marie appeals the custody order, arguing that the
superior court's ruling was unsupported by the evidence and was
based on the court's consideration of impermissible factors.
A. Standard of Review
The trial court is vested with broad discretion in
child custody decisions. Gratrix v. Gratrix, 652 P.2d 76, 79
(Alaska 1982). Its determination of custody will not be set
aside unless the record demonstrates that controlling findings of
fact are clearly erroneous or that the trial court abused its
discretion. Zimin v. Zimin, 837 P.2d 118, 123 n.10 (Alaska
1992); Farrell v. Farrell, 819 P.2d 896, 898 (Alaska 1991).
A finding of fact is clearly erroneous only when a
review of the entire record leaves us with a definite and firm
conviction that the trial court has made a mistake. Money v.
Money, 852 P.2d 1158, 1161 (Alaska 1993). An abuse of discretion
has occurred if the trial court considered improper factors in
making its custody determination, failed to consider statutorily
mandated factors, or assigned disproportionate weight to
particular factors while ignoring others. McDanold v. McDanold,
718 P.2d 467, 468 (Alaska 1986).
B. Trial Court's Finding that Don and Marie Were
Equally Qualified under the Statutorily Specified
Factors
The factors to be considered by the trial court in
determining custody are set forth in AS 25.24.150(c); this
statute lists eight specific factors that the court must consider
in each case and, in addition, authorizes the court to consider
any other factors it deems pertinent:
(c) The court shall determine
custody in accordance with the best interests
of the child . . . . 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.
In the present case, Marie first claims that the
evidence fails to support the superior court's finding that,
under the eight specific factors listed in the statute, she and
Don were equally capable of providing for the best interests of
the children. Specifically, Marie asserts that the witnesses
supporting Don's request for primary physical custody, Don's
mother and the Pitsenbergers, were biased in his favor, whereas
the unbiased expert testimony of the child custody investigator,
Levit, and the school counselor, Demming, favored her own custody
request. Marie argues that the superior court was clearly
erroneous in failing to accept the testimony of the "neutral"
experts over other "biased"witnesses.
Marie's argument, however, tacitly relies on two
assumptions: that the trial court must accept expert testimony at
face value whenever it has not been contradicted by opposing
expert testimony and that the court is inflexibly required to
accord more credit to an ostensibly objective witness than to one
who arguably has reason to be biased. Both assumptions are
incorrect. In addressing the statutory criteria for determining
the best interests of a child, the trial court must decide
matters of credibility on a case-by-case basis, "consider[ing]
all the relevant circumstances including the demeanor of the
witnesses and conflicting testimony." McDanold, 718 P.2d at 469.
In evaluating the relative credibility of witnesses, the court
ordinarily has no obligation to accept expert testimony when it
finds other evidence more persuasive;2 nor is the court bound to
favor the testimony of an ostensibly neutral witness who is
unconvincing over that of a witness who testifies convincingly
despite circumstances suggesting potential bias.
As this court has previously held, "great weight must
be accorded to the trial judge's experience and . . . evaluation
of the demeanor testimony." Sheridan v. Sheridan, 466 P.2d 821,
824 (Alaska 1970). When the trial judge's decision is dependent
largely upon oral testimony of the witnesses seen and heard at
trial, this court must give due regard to the trial judge's
opportunity to judge the credibility of those witnesses. Parker
v. Northern Mixing Co., 756 P.2d 881, 892 (Alaska 1988) (holding
that "it is the function of the trial court, not of this court,
to judge witnesses' credibility and to weigh conflicting
evidence"); Kenai Power Corp. v. Strandberg, 415 P.2d 659, 660
(Alaska 1966). Our review of the record convinces us
that, although the trial court heard conflicting testimony on
several issues, substantial evidence was presented at trial to
allow the court to find that both Don and Marie were fully
capable of providing for the emotional and physical needs of
their children and that, under the specific criteria listed in AS
24.25.150(c), both were equally suited to act as the children's
primary custodians. This court's role of appellate review does
not entail an independent balancing of the conflicting evidence
presented below. The trial judge was in the best position to
evaluate the witnesses' credibility and their testimony. The
trial judge's findings of fact indicate that he fully considered
the totality of the evidence, ultimately concluding that Don and
Marie were similarly situated with respect to the statutorily
specified factors for determining custody. Those findings are
not clearly erroneous.
C. Trial Court's Consideration of Purportedly Improper
Factors
Marie next contends that, even if the evidence was
sufficient to support the trial court's finding that she and Don
would be equally capable of providing for the children's needs
under the criteria set out in AS 25.24.150(c), the court erred in
relying on impermissible non-statutory factors to tip the balance
in Don's favor.
In its findings of fact and conclusions of law, the
trial court stated:
The Court finds, based upon the facts
and statutory factors as listed above, that
the primary physical custody of the children
during the school year should be vested in
[Don]. The Court makes this finding based
upon two primary factors. The first of these
is that the children will remain residing in
the family residence. The second and more
important factor is that [Marie] has
remarried a military man and has moved into a
home where there are two other children. The
Court finds that, all other factors being
fairly equal, the fact that the children
would be moving into a situation where they
would have to adjust to two other children
tips the scale in favor of primary physical
custody being with the father during the
school year.
Marie argues that the trial court abused its discretion
in basing its decision on these two factors. She points out
that, among the eight specific factors that must be addressed in
determining the best interests of a child under AS 25.24.150(c),
factor (c)(5) requires the court to consider "the length of time
the child has lived in a stable, satisfactory environment and the
desirability of maintaining continuity." Marie reasons that the
trial court's reliance on the desirability of allowing the
children to remain in the family dwelling and on the
undesirability of forcing them to adjust to a new family setting
was tantamount to considering the parties' ability to provide the
children with "a stable, satisfactory environment,"as provided
for under factor (c)(5). Marie argues that, because the trial
court had already determined that she and Don were equally
situated with respect to factor (c)(5), its subsequent reliance
on essentially the same factor to support awarding custody to Don
was contradictory.
We agree with Marie that the desirability of keeping
the Evans children in the family residence and the undesirability
of requiring them to adjust to a new family setting were factors
that the trial court could properly have considered in addressing
AS 25.24.150(c)(5). See, e.g., Craig v. McBride, 639 P.2d 303,
305 (Alaska 1982). The record nevertheless reveals that the
court did not actually address these issues when it addressed
factor (c)(5). Regarding this statutory factor, the court found:
Since the separation the children have
been in a stable and satisfactory environment
fifty percent of the time in each parent's
homes and thus the Court finds there is
nothing to discriminate between the parties
in regard to this factor. The parties
believe and the Court finds that it is
important to provide some stability in the
children's living situation.
The trial court's finding makes it clear that, in addressing
factor (c)(5), the court focused on the narrow question of Don's
and Marie's respective abilities to maintain stable and
satisfactory relations between themselves and the children
following separation. It was only in this narrow respect, the
stability of the children's environment in relation to each
parent, that the trial court purported to find Don and Marie
equally situated under factor (c)(5).
Upon later returning to the issue of stability, the
court broadened its consideration to encompass the children's
more general needs for stability in their overall living
environment; the court evaluated the children's needs, not just
in relation to each parent, but in relation to the totality of
the circumstances they were likely to encounter in their
respective parents' homes. In this context, the court's reliance
on the desirability of the children's continued placement with
Don in the family residence, and on the undesirability of forcing
their adjustment to a new family setting with Marie neither
duplicated nor contradicted the court's prior determination of
relative equality under factor (c)(5).
The fact that the trial court could have taken account
of the children's overall stability in addressing factor (c)(5),
but did not actually do so, had no bearing on the validity of the
court's ultimate decision in this case, since the court could and
did properly consider the same circumstances under paragraph
(c)(9) of AS 25.24.150(c). This paragraph vested the court with
broad authority to address, in addition to the specific factors
articulated in paragraphs (c)(1) through (c)(8), all "other
factors that the court consider[ed] pertinent." As we have
emphasized in previous cases, a trial court's determination of
the best interests of a child in an initial custody proceeding
should be based on "all relevant factors including those
enumerated in AS 25.24.150(c)."McDanold v. McDanold, 718 P.2d at
469 (quoting McClain v. McClain, 716 P.2d 381 (Alaska 1986)). As
long as the record establishes, as it does here, that the trial
court did in fact properly consider "all relevant factors," the
specific statutory rubric the court invoked in the course of its
consideration is inconsequential.
Marie further argues, however, that the trial court
abused its discretion in deeming the children's ability to remain
in the family residence to be a pivotal factor in awarding
custody. Marie points out that Don was awarded custody of the
house because it had belonged to him before the marriage. Marie
claims that, because Don was awarded the house as a result of
circumstances that were beyond her control and that were
unrelated to Don's ability to be a competent parent, the court
should not have been allowed to make Don's occupancy of the home
play a decisive role in awarding custody. In support of this
argument, Marie cites Craig v. McBride, 639 P.2d 303 (Alaska
1982). Yet that case actually defeats Marie's argument. In
Craig, we held that the trial court, in assessing the relative
stability of the parties under AS 24.25.150(c)(5), could properly
consider the fact that the father had lived in the same town for
many years, earning broad community respect, as well as "the fact
that the mother had only recently attempted to create a stable
home environment." Id. at 305. To the extent Craig has a
bearing on the present case, it indicates that the trial court
acted properly in considering, as a factor in awarding custody,
the added stability the Evans children would enjoy if they
remained in the family residence.
Nor do we perceive any other ground for concluding that
the trial court acted impermissibly in basing its determination
of custody on the two non-statutory factors at issue here -- the
added stability the Evans children might gain from continuing to
live in their family residence and the potential instability they
might suffer from being uprooted immediately following the
divorce. Contrary to Marie's arguments on appeal, the court did
not give these factors disproportionate significance over other
relevant factors; rather, it emphasized that they were
determinative only because the parties were equally qualified to
have custody of the children in all other respects. Furthermore,
the prominent role the court assigned to these factors does not,
as Marie contends, reflect the court's reliance on the
questionable assumption that children whose parents divorce
should generally remain in the family residence; instead, the
court's decision appears to have been based on case-specific
evidence demonstrating Jon Paul's and Portia's actual need for
physical and emotional continuity and stability in their overall
living situation.3
Under the circumstances of the present case, the trial
court did not abuse its discretion in considering the potentially
undesirable emotional consequences that Jon Paul and Portia might
have suffered had they been required to adjust to the changed
family environment of Marie's new marital residence.4
III. CONCLUSION
We conclude that the trial court did not abuse its
discretion in awarding primary physical custody of the children
to Don. Accordingly, we AFFIRM the judgment entered below.
_______________________________
*Sitting by assignment made under article IV, section 16 of
the Alaska Constitution.
1 The court also awarded the parties shared legal custody
of the children and provided for generous visitation rights to
each parent during periods of non-primary custody. These aspects
of the custody order are not in dispute.
2 Cf. Dolchok v. State, 639 P.2d 277, 281 (Alaska 1982)
(recognizing that, despite "uniform psychiatric testimony"
indicating that the defendant was not guilty by reason of
insanity, the "ancillary factual matters in [the defendant's]
confession provided a sufficient evidentiary basis" to support
the defendant's conviction).
3 The trial court's findings on this point were supported
by the testimony of both the school counselor and the child
custody investigator. The child custody investigator, Levit,
testified that moving into a new home with two other children
would not necessarily result in instability for Jon Paul and
Portia, however, "there need[ed] to be blending, . . . a meshing
of everybody, an understanding, a creation of relationships that
work." The school counselor, Demming, testified that moving
into a new home with two other children would be "another change
that Jon Paul and Portia have to . . . deal with and to . . .
figure out where they are in the family and which place they
have, . . . in communication with the new stepdad."
4 In connection with this issue, Marie raises several
peripheral arguments that require only brief attention. Marie
argues that the trial court abused its discretion by focusing on
the physical stability of the children rather than on their
emotional needs in determining which additional factors it
considered pertinent. Our review of the record, however,
convinces us that the trial court's determination was based on a
thorough evaluation of the children's physical and emotional
needs.
Marie also asserts that the court should have given her
preference in view of her "status as primary caregiver of the
children." We have never adopted a rule giving custodial
preference to the primary caregiver. At least one commentator
has suggested that such a preference is no more desireable than
the now discredited tender years doctrine which gave custodial
preference to the mother of young children. 2 Clark, The Law of
Domestic Relations in the United States, 20.4(b) pp. 491-501
(West Pub. 1987). Given Marie's failure to assert the issue
below and the conflicting testimony as to whether Marie had in
fact been the childrens' primary caregiver, we decline to address
Marie's argument for a primary caregiver preference.
Finally, Marie relies on this court's holding in
Lowdermilk v. Lowdermilk, 825 P.2d 874 (Alaska 1992), to argue
that the trial court failed to adequately explain how the two non-
statutory factors it relied on had any actual bearing on Don's
and Marie's ability to provide for the best interests of their
children. In Lowdermilk, this court held that it was improper
for the trial court to consider that the mother "[did] not see
the world as the average person sees it"without any explanation
of what the statement meant or how the factor related to the
issue of parenting ability. Id. at 879. Here, by contrast, the
trial court explained that the two additional factors it deemed
determinative -- continuing to live in the marital home and not
moving in to a home which had two other children -- affected Jon
Paul's and Portia's ability to adjust to the divorce and their
emotional stability. We find no violation of Lowdermilk.
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