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A. H. v. W. P. (6/9/95), 896 P 2d 240
<![CDATA[
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, Alaska 99501,
(907) 264-0607.
THE SUPREME COURT OF THE STATE OF ALASKA
A.H., )
) Supreme Court File No. S-5683
Appellant, )
) Superior Court File No.
) 3AN-87-11173 Civil
v. )
)
W.P., ) O P I N I O N
)
Appellee. ) [No. 4222 - June 9, 1995]
)
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage,
John Reese, Judge.
Appearances: A.H., pro se, Alva,
Oklahoma. Andrew J. Fierro, Kemppel, Huffman
and Ginder, Anchorage, for Appellee.
Before: Moore, Chief Justice,
Rabinowitz, Matthews, Compton and Eastaugh,
Justices.
COMPTON, Justice.
I. INTRODUCTION
A.H. appeals numerous rulings made during the course of
custody litigation with her ex-husband, W.P., over their son,
C.P. A.H. is suffering from an undiagnosed mental impairment
that had its onset after she was awarded custody of C.P. in 1988.
Since then, according to the trial court, A.H.'s actions indicate
"a significant disturbance in her overall cognitive and emotional
functioning." Her behavior led W.P. to seek custody of C.P.
Since the initiation of the custody modification proceedings,
A.H. has taken C.P. out of Alaska twice without notice to the
court or W.P. as to her plans or whereabouts. The second of
these episodes violated a court order that required C.P. to be
kept within the Third Judicial District of Alaska.
The superior court concluded that A.H.'s impaired
mental functioning represented a substantial change of
circumstances. After reassessing the best interests of C.P., the
superior court awarded his exclusive physical custody to W.P.,
and ordered A.H. to pay child support.
A.H. appeals from these rulings on numerous grounds.
II. FACTS AND PROCEEDINGS
A.H. and W.P. were married in 1977, and in 1982 had a
son, C.P. In early 1988 the couple was divorced. A.H. obtained
sole legal and primary physical custody of C.P., with W.P. paying
child support and receiving several weeks of visitation each
year. For the two years following the divorce, W.P. was able to
complete visitation with C.P., even though C.P. was living with
A.H. in Oklahoma.
However, during this period and the following years
A.H. began to exhibit strange behavior. She began therapy for an
undiagnosed mental illness, but did not complete the treatment.
In late 1989 A.H. contacted W.P. and told him that people were
after her and C.P. After A.H. and C.P. fled by car from Oklahoma
to Dallas, Texas in the middle of the night, W.P. brought C.P. to
Alaska with A.H.'s apparent consent. A.H. followed within weeks.
W.P., A.H., and C.P. resided together in Anchorage from January
to September 1990. A.H. and C.P. then obtained other
accommodations in Anchorage, but eventually relocated to Girdwood
in June 1991. A.H.'s strange behavior continued. She
withdrew C.P. from the school, alleging that he was undergoing
physical and mental abuse in the school, and that people were
attempting to kidnap him. Additionally, it is alleged that she
contacted the Alaska State Troopers to report a one-month-old
fetus in her refrigerator.1
Between 1989 and 1992, W.P. alleges that A.H. and C.P.
resided in four different cities, and C.P. attended four to six
different schools. W.P. also maintains that faculty members at
one school noted behavioral changes and instability in C.P.,
developments they attributed to A.H.'s behavior. W.P. further
asserts that during this period, A.H. had worked for a number of
employers, and filed lawsuits or grievances against several of
them.
During the summer of 1991, W.P. alleges that A.H.
prevented his visitation with C.P. that had been scheduled in
accordance with the terms of the dissolution decree. This,
combined with W.P.'s observations of A.H.'s "bizarre behavior,"
led him to petition unsuccessfully for A.H.'s involuntary
institutional commitment in early 1992.
In May 1992 W.P. filed a motion to show cause why A.H.
should not be held in contempt for her non-compliance with the
visitation provisions of the parties' dissolution decree. The
parties' attorneys signed on behalf of their clients a
stipulation relating to summer visitation arrangements.
Accordingly, W.P. took physical custody of C.P. on June 29. A.H.
removed C.P. from W.P.'s custody after approximately three weeks.
In the interim, W.P. claims that A.H. was obsessive about
maintaining an abnormally high degree of contact with C.P. W.P.
states that A.H. insisted on making an inordinate number of phone
calls to C.P. and contacted the police on two occasions, on one
because she was unable to talk with C.P. as he was at a cabin
without a phone, and on another to allege that C.P. required
medical treatment.
W.P.'s motion for order to show cause was heard in late
July. W.P. also filed additional motions, one seeking to have a
mental evaluation performed on A.H. and another to obtain interim
custody of C.P. The court permitted A.H. to withdraw the June
stipulation. Nevertheless, the court held, inter alia, that (1)
the dissolution decree provisions regarding visitation were to be
enforced, (2) A.H.'s allegations that W.P. abused their son were
unfounded, (3) A.H.'s excessive need for contact with C.P. was
not in C.P.'s best interests, and (4) in the future, A.H. was to
limit her phone calls to C.P. to three, fifteen-minute calls
weekly.
At August and September hearings, the court ordered
that A.H. undergo a psychological evaluation. The court delayed
ruling on the change of custody until the evaluation was
available. In September, before the scheduled evaluation
appointment, A.H. fled the state with C.P., without notice to the
court or W.P. W.P. then filed an expedited motion for interim
custody, which was granted in mid-September.
The authorities located A.H. and C.P. in Oklahoma. In
October, proceedings were held in the Oklahoma District Court.
The judge held that the court did not have final jurisdiction
over the custody determination, and expressed deep concern that
C.P. had undergone stress because of A.H.'s irresponsible
actions. The court gave W.P. immediate, temporary custody of the
child. W.P. and C.P. returned to Alaska, and A.H. soon followed.
After her arrival, A.H. forced herself into C.P.'s
classroom at school in order to contact him in-person. In
response, W.P. obtained a restraining order that prevented A.H.
from having unsupervised physical contact with C.P. or any
contact at his school. The court also granted W.P. temporary
custody of C.P.
Hearings were held in October. Despite an order that
no one was to discuss the case with C.P. besides the psychologist
he was seeing, A.H. was observed coaching C.P. about his
testimony. The court also had ordered that C.P. was not to be
removed from the Third Judicial District, and that A.H. was to be
permitted supervised visitation. Nevertheless, in late November
A.H. successfully abducted C.P. during a supervised visitation
session and fled Alaska.
An arrest warrant was issued for A.H. In early
December, and in A.H.'s absence, the court awarded W.P. interim
child support of $300 per month. The court based the award on
A.H.'s estimated ability to earn $1,500 per month. Additionally,
the court ordered A.H. to pay one-half of the monthly cost of
having her visitation supervised, or $400.
In January 1993 the authorities located A.H. and C.P.
in Washington State. A.H. was taken into custody pending her
extradition to Alaska. W.P. went to Washington and brought C.P.
back to Alaska. A.H. was eventually charged with Custodial
Interference in the First Degree, and a trial date on the charge
was set for April.
The change of custody hearing was held in March. After
two days of hearings involving the testimony of medical
professionals, the court entered findings of fact and conclusions
of law. The court held that there clearly had been a change in
circumstances since the entry of the custody order. The court
specifically discussed several instances of A.H.'s unconventional
conduct, and concluded that "there has been a significant
disturbance in A.H.'s overall cognitive and emotional
functioning." Therefore, the court determined that A.H.'s
bizarre behavior . . . is contrary to
[C.P.'s] best interests. . . . At the very
least, this behavior is embarrassing to
[C.P.], and he is presently at a very
vulnerable age and for this conduct to
persist can only place him in graver
jeopardy. . . . The evidence further
demonstrates that [A.H.] is not reliable.
Whether she is having this difficulty due to
a brain injury or mental illness, it leads me
to the conclusion that she is not presently
able to safely care for [C.P.]
The court also concluded that, "There is no credible evidence
that [W.P.] is not an appropriate custodian, and it does appear
that it is in [C.P.'s] best interests to be in [W.P.'s] sole
care, custody, and control." Furthermore, the court opined that
A.H.'s visitation with C.P. "is extremely problematic" and
presented the risk that she might abscond with the child again, a
possibility the court found "extremely likely." Therefore, the
court ordered that once A.H. was no longer incarcerated,2 she
could not have visitation or contact with C.P. "absent a court
order approving a system of security to keep [A.H.] from removing
[C.P.] from his placement with his father." Finally, without
additional comment, the court ordered A.H. to continue to pay
child support in accordance with the court's earlier order.
A.H. appeals from these rulings.
III. DISCUSSION
A. Issues Waived Due to Inadequate Briefing
A.H. is proceeding pro se. The quality of her briefing
greatly impairs any viable arguments she may have, as well as
this court's ability to deal with the issues presented. A.H.
presents arguments that may have validity. However, the majority
of the fifty-six issues she raises are waived due to inadequate
briefing. Throughout most of the briefs A.H. provides no
citation of legal authority, and in the vast majority of
instances her arguments are cursory and undeveloped. "[W]here a
point is given only cursory statement in the argument portion of
a brief, the point will not be considered on appeal." Adamson v.
University of Alaska, 819 P.2d 886, 889 n.3 (Alaska 1991); see
also Wren v. State, 577 P.2d 235, 237 n.2 (Alaska 1978) (issue
waived due to failure to list in points of appeal and inadequate
briefing). Accordingly, this court has held that superficial
briefing and the lack of citations to any authority constitutes
abandonment of the point on appeal. Wernberg v. Matanuska Elec.
Ass'n, 494 P.2d 790, 794 (Alaska 1972); see also Forquer v.
State, Commercial Fisheries Entry Comm'n, 677 P.2d 1236, 1238 n.2
(Alaska 1984) (issue waived because appellants failed to develop
their arguments adequately and the record to extent necessary for
court adequately to address an issue); Fairview Dev., Inc. v.
City of Fairbanks, 475 P.2d 35, 36 (Alaska 1970) ("single
conclusory paragraph without citation of any authority . . . is
not adequate to put the issue before the court"), appeal
dismissed and cert. denied, 402 U.S. 901 (1971).
Addressed below are A.H.'s claims which are developed
and supported by the necessary authority.
B. Changed Circumstances and Best Interests of the
Child as a Basis for Awarding Custody to W.P.
A child custody or visitation award
"may be modified if the court determines that
a change in circumstances requires the
modification of the award and the
modification is in the best interests"of the
children involved. AS 25.20.110. The parent
making the motion for custody modification
bears the burden of proving a substantial
change of circumstances as a threshold
matter. Lee v. Cox, 790 P.2d 1359, 1361
(Alaska 1990); Garding v. Garding, 767 P.2d
183, 184-85 (Alaska 1989). Once the movant
meets that burden, he or she is entitled "to
a hearing to consider whether, in light of
such changed circumstances, it is in the
child's best interest to alter the existing
custodial arrangement." Lee, 790 P.2d at
1361. The burden of proof remains on the
parent making the motion to "demonstrate that
the changed circumstances, considered in
conjunction with other relevant facts bearing
upon the child's best interests, warrant
modification of the existing custody decree."
Id.
We will reverse the trial court's
order to modify custody only if "the record
shows an abuse of discretion or if
controlling factual findings are clearly
erroneous." McClain v. McClain, 716 P.2d
381, 384 (Alaska 1986); Gratrix v. Gratrix,
652 P.2d 76, 79-80 (Alaska 1982). Abuse of
discretion in child custody cases may occur
when, in reaching its decision, the trial
court considers improper factors, fails to
consider statutorily mandated factors, or
gives too much weight to some factors.
S.N.E. v. R.L.B., 699 P.2d 875, 878 (Alaska
1985); Starkweather v. Curritt, 636 P.2d
1181, 1182-83 (Alaska 1981); Deivert v.
Oseira, 628 P.2d 575, 577 (Alaska 1981).
Long v. Long, 816 P.2d 145, 150 (Alaska 1991).
In the sections of her brief in which A.H. deals with
changed circumstances and the best interests of the child, the
only3 claim she adequately briefs is her argument that the trial
court, in finding changed circumstances that justified
reassessment of C.P.'s best interests, see Long v. Long, 816 P.2d
145, 150 (Alaska 1991) (interpreting AS 25.20.110), impermissibly
relied upon a social stigma related to A.H.'s handicap.4
In support of this assertion, A.H. cites S.N.E. v.
R.L.B., 699 P.2d 875 (Alaska 1985). In S.N.E., this court did
hold that
[c]onsideration of a parent's conduct is
appropriate only when the evidence supports a
finding that a parent's conduct has or
reasonably will have an adverse impact on the
child and his best interests.
Id. at 879.
Of greater relevance to this case is our decision in
Morel v. Morel, 647 P.2d 605 (Alaska 1982). In Morel we stated:
The mental health of a parent is a
proper topic of inquiry at a custody hearing;
however, the basis of custody determination
is the best interests of the child and a
parent's conduct is relevant only insofar as
it has or can be expected to negatively
affect the child.
Id. at 608.
Both S.N.E. and Morel support the trial court's ruling
on this issue. The trial court did not comment or rely on a
social stigma associated with A.H.'s disability. Rather, it
specifically referred to A.H.'s "bizarre conduct," (emphasis
added), and "extremely destructive action[s]." It held that this
"significant disturbance in A.H.'s overall cognitive and
emotional functioning" constituted a substantial change in
circumstances. Therefore, the court examined the best interests
of the child, and held that A.H.'s behavior and condition were
detrimental to C.P., and that she was unreliable and unable to
care for him. While the court did indicate that C.P. might be
embarrassed by his mother, the reference came in discussing
A.H.'s "conduct" and not any stigma associated with her
impairment. The trial court did not improperly rely on any
social stigma related to A.H.'s condition in awarding custody to
W.P.
C. The Court's Order Mandating that A.H. Pay Child
Support
A child support award
will be reversed "only if this court has
a definite and firm conviction based on the
record as a whole that a mistake has been
made or the trial court abused its
discretion."
Money v. Money, 852 P.2d 1158, 1164 (Alaska 1993) (quoting Hunt
v. Hunt, 698 P.2d 1168, 1172 (Alaska 1985)).
We glean from W.P.'s brief that child support was based
on a master's finding that A.H. was capable of earning $1,500 per
month, a figure approximating A.H.'s earning capacity before she
fled the state with C.P. in September 1992.5 In December 1992
the superior court issued an interim order that A.H. pay $300 per
month in child support in accordance with Civil Rule 90.3. This
order was issued while A.H.'s and C.P.'s whereabouts were unknown
during their second flight from the state. After A.H. and C.P.
were located and returned to Alaska, the superior court ordered
that W.P. receive permanent custody and that the $300 monthly
child support payment be ongoing.
However, between these orders the superior court gave
significant attention to the impairment in A.H.'s mental
functioning. It was this disability that was the basis for the
superior court's modification of custody. W.P.'s own allegations
indicate that A.H.'s condition had resulted in her loss of
"numerous jobs" and difficulty in maintaining amicable
relationships with employers. The trial court characterized A.H.
as a person suffering from a mental impairment who is "paranoid,"
not "reliable," and is "not in touch with reality." It is
difficult to conceive that such an individual is capable of
commanding the level of salary the trial court imputed.
Therefore, we conclude that the trial court was
mistaken in reaffirming the child support award based on A.H.'s
ability to earn $1,500 monthly. The trial court's award
constitutes an abuse of discretion. Continuance of the child
support in this amount in light of A.H.'s condition also
apparently violates the spirit of the commentary to Alaska Civil
Rule 90.3: "A determination of potential income may not be made
for a parent who is physically or mentally incapacitated . . . ."
Alaska R. Civ. P. 90.3 cmt. III.C.
The superior court's child support order is vacated.
The issue is remanded for determination of an appropriate amount
of child support, given A.H.'s present mental disability and a
realistic assessment of her earning capacity with her disability.6
IV. CONCLUSION
The trial court properly found that a substantial
change in circumstances justified reconsideration of C.P.'s best
interests. Furthermore, review of the trial court's evaluation
process reveals no clearly erroneous factual findings or abuse of
discretion in the custody modification proceeding. Therefore the
superior court's holding on this issue is AFFIRMED.
The superior court did abuse its discretion in
ordering A.H. to pay $300 monthly in child support. This issue
is REVERSED and REMANDED for recalculation of child support
consistent with this opinion.
_______________________________
1. A.H. provides an explanation for this contention. She
explains that she "called the troopers to report what I felt was
a bottle of juice that someone had opened or tampered with like
the [T]ylenol poisening [sic] case." She further relates that
the trooper located miscarriage tissue in the refrigerator, where
she had stored it so that medical professionals could later
examine it to determine whether A.H. would require certain
medical treatment. In support of this contention, A.H. offers a
medical report from Alaska Women's Health Services advising her
to retain passed miscarriage tissue for such a purpose. A.H.
also asserts that the tissue came to the attention of the officer
because the Girdwood fire chief informed the trooper of its
existence. A.H. maintains this occurred because the fire chief
is Catholic, and A.H. is pro-choice.
2. A.H. remained incarcerated pending trial on a felony
offense as a result of taking C.P. out of the state.
3. In these sections of her brief, A.H. essentially makes
an overall argument that considerations regarding C.P.'s best
interests weigh more heavily in her favor. With the exception of
the substantive argument addressed in this section, she does not
assert that the court abused its discretion by considering
improper factors, failing to consider statutorily mandated
factors, or improperly weighing certain factors in making its
determination. Likewise, A.H. does not otherwise contend that
the trial court made factual findings that are clearly erroneous.
See McClain v. McClain, 716 P.2d 381, 384 (Alaska 1986).
4. A.H. continually refers to her "handicap,"but does not
define it in her briefs. Based on the trial court's concluding
statements, it appears that she alleged that her difficulties
were due to a brain injury and not a mental illness. The court
reasoned that regardless of whether her actions were due to one
cause or the other, a change of custody was appropriate.
5. The master's report was not included in the record, but
in W.P.'s Motion for Interim Child Support and Supervised
Visitation Costs he requested that a child support award be
granted based upon A.H.'s salary as a bookkeeper before she fled
Alaska with C.P. in September 1992.
6. To support her contention that she is not capable of
earning $1,500 per month, A.H. offers a July 1993 letter from
Oklahoma's Social Security Administration indicating that she is
entitled to disability benefits. While she did not offer this
correspondence to the trial court, it should be considered upon
remand.
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