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Bird v. Starkey (4/4/96), 914 P 2d 1246
Notice: This opinion is subject to 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, phone (907) 264-0607, fax (907) 276-5808.
THE SUPREME COURT OF THE STATE OF ALASKA
DONALD ALLEN BIRD, )
) Supreme Court No. S-7308
) Superior Court No.
v. ) 3AN-93-1533 CI
LYNN ELLEN STARKEY, ) O P I N I O N
Appellee. ) [No. 4333 - April 4, 1996]
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
John Reese, Judge.
Appearances: Max F. Gruenberg, Jr., Jennifer
L. Holland, Gruenberg and Clover, Anchorage,
for Appellant. Maryann E. Foley, Anchorage,
Before: Compton, Chief Justice, Rabinowitz,
Matthews, Eastaugh, Justices, and Shortell,
Justice, pro tem.*
The mother and father of a young boy disagree as to
where their son should attend kindergarten in Anchorage. The
superior court issued an order that he attend Orion Elementary
School for his kindergarten year. The father appeals.
II. FACTS AND PROCEEDINGS
Donald Allen Bird ("Don") and Lynn Starkey (now Starkey-
Shuler) ("Lynn") lived together in a domestic relationship which
produced a son, Justin Michael Starkey, born January 11, 1990.
On February 19, 1993, after the relationship ended, Don filed a
custody complaint. The parties ultimately negotiated a "Child
Custody and Support Agreement"which was executed December 16,
1994. The trial court, finding the Agreement to be in Justin's
best interests, incorporated the Agreement into its custody and
The Agreement is, by its terms, temporary until June
15, 1996. Until that date, either party has the right to seek a
court hearing to change the Agreement under a "best interest"
analysis. Otherwise, the Agreement is to become permanent on
June 16, 1996, subject to modification only through a showing of
change in circumstances. The parties chose that date "because
that length of time will give them the opportunity to evaluate
this Agreement through Justin's first school year."
The parties agreed to joint legal and physical custody,
and agreed to cooperate in all aspects of child-rearing:
Both parties shall advise and consult
with each other on all major decisions
concerning the health, welfare, religious
training, upbringing, and education of their
child, including the choice of day care,
school, camps and vacations, and health care
issues, to arrive at a harmonious policy
calculated to promote the child's best
The Agreement set a schedule for shared physical custody which
gave Lynn custody 51.4% of the time and gave Don custody 48.6% of
the time. According to Lynn, Justin is with her 56% of the
Justin was scheduled to begin kindergarten on September
5, 1995. However, Don and Lynn were unable to agree upon which
school Justin was to attend. They attempted mediation but failed
to reach an agreement on August 22. On August 29, Lynn filed a
motion in superior court for an order allowing Justin to attend
Orion Elementary School, which is Lynn's neighborhood school at
Elmendorf Air Force Base.
Don had already applied under the lottery system for a
space at Inlet View Elementary. The day after Lynn filed her
motion, August 30, Don applied to the Anchorage School District
for a zone exemption for Justin to attend Inlet View. Justin was
accepted into Inlet View the same day.
Don filed an opposition to Lynn's motion on August 31,
and asked the court to issue an order for Justin to attend Inlet
On September 1, 1995, without explanation, Judge Reese
of the superior court issued an order for Justin to attend Orion.
III. STANDARD OF REVIEW
This court will overturn a lower court's resolution of
a custody issue only when there is an abuse of discretion or
where there are clearly erroneous findings of fact. Howlett v.
Howlett, 890 P.2d 1125, 1126 (Alaska 1995); Lone Wolf v. Lone
Wolf, 741 P.2d 1187, 1190 n.2 (Alaska 1987). An abuse of
discretion may be found "where the trial court considered
improper factors, failed to consider statutorily-mandated
factors, or improperly weighed certain factors in making its
determination." Lone Wolf, 741 P.2d at 1190 n.2.
A. The Disagreement
Don argues that it is in Justin's best interest to
attend Inlet View. He notes that students from Inlet View score
well above average on certain standardized tests; that Inlet View
is under capacity whereas Orion is over capacity; that Inlet
View's program is "among the strongest in the city [with] a long-
standing history of stability and community involvement"; that
parental involvement at Inlet View is more extensive than at
Orion; and that the physical facilities at the two schools are
quite different and that Orion has a serious funding problem.1
Don suggests that the trial court's decision was based
on factors other than Justin's best interests. For example,
Lynn's affidavit before the trial court suggested that Orion was
more convenient for her and that Inlet View was "no where near
either of our homes."
Lynn maintains that Justin's best interests are served
by the court's order for him to attend Orion. She relies
primarily on the argument that attending a school in a
neighborhood in which he spends 56% of the school year will
better serve Justin's "physical, emotional, mental, religious,
and social needs"2 by allowing him more interaction with
neighborhood children. She also impliedly suggests that Orion's
full-day kindergarten program serves Justin's interests better
than Inlet View's half-day program.3 Thus, she claims that the
trial court's decision was predicated upon Justin's best
interests and was not an abuse of discretion.
For the reasons that follow, however, we cannot address
the relative merits of the two kindergarten programs in relation
to Justin's needs.
B. Lack of Findings by the Trial Court
The superior court ordered that Justin attend Orion
without any explanation or findings. Thus, any attempt to review
the court's decision for an abuse of discretion using the
considerations outlined above would be mere guesswork. The
superior court may abuse its discretion by considering improper
factors or improperly weighing statutorily mandated factors.
Lone Wolf, 741 P.2d at 1190 n.2. We do not know what factors it
considered here. Nowhere in the court's order is it even made
clear that Justin's best interests were considered.
We have previously remanded cases where the superior
court has failed to explain or justify its actions. In Hakas v.
Bergenthal, 843 P.2d 642 (Alaska 1992), this court remanded a
custody issue 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)." Id. at 645. In that
case, "review of the record reveal[ed] no express consideration
by the superior court of [the child's] best interests in any
context." Id. Rather, it appeared that the custody
determination was made as a sanction against one parent for
In Lone Wolf, 741 P.2d at 1190-91, this court remanded
a visitation determination after concluding that the superior
court had abused its discretion by including inadequate findings
to justify its limitation on the father's visitation. On remand,
the court was instructed "to make specific findings to support
its visitation award." Id. at 1191.
This court recently reviewed the policy behind
requiring superior court judges to articulate the basis of their
decisions on child support matters. In the context of a Civil
Rule 90.3 child support modification motion, we wrote that "the
trial court must provide '[a]dequate findings of fact . . . so
that a reviewing court may clearly understand the grounds on
which the lower court reached its decision.'" Waggoner v.
Foster, 904 P.2d 1234, 1235 (Alaska 1995) (remanding modification
decree for specific findings relating to best interests of
children) (alterations in original) (quoting Wright v. Gregorio,
855 P.2d 772, 773 (Alaska 1993)).
This line of cases requires the trial court to
articulate the reasons for its holding where those reasons are
not apparent from the record.4 Without any findings, the order
becomes essentially unreviewable by this court. We thus find it
necessary to remand for specific findings as to where Justin
should attend school and why.5
While the issue before the trial court was briefed and
concluded within a matter of a few days, briefings to this court
were concluded only in December. On remand, the trial court may
take into consideration that a significant portion of the school
year has passed already with Justin at Orion. Also, if the
parties have not agreed upon a school for Justin for the years to
come, the trial court may wish to entertain motions to address
that issue at this time.
We REMAND to the superior court for specific findings
relating to Justin's best interests.6
* Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1 Lynn objects to all of Don's assertions regarding the
differences between the two schools as hearsay, since they are
based apparently on conversations he has had with officials from
the two schools and from the Anchorage School District. It is
true that no affidavits from those officials were presented; the
case was necessarily briefed hurriedly and was decided on the
parties' own affidavits. No hearsay objection was raised before
the superior court, however. Lynn's hearsay argument is thus
waived. See Adkins v. Nabors Alaska Drilling, Inc., 609 P.2d 15,
22 (Alaska 1980) (defects waived where hearsay in affidavit was
not objected to); Smith v. Sampson, 816 P.2d 902, 907 (Alaska
1991) ("In the absence of a hearsay objection, hearsay evidence
is competent evidence which may be considered.").
Lynn also contends that Don consented to enrolling
Justin in Orion. This argument is without merit. As her own
affidavit points out, Don gave permission for her to enroll
Justin in Orion pending his applications to various other area
schools, but she and Don "have been unable to agree as to what
school Justin should attend on September 5."
2 Alaska Statute 25.24.150(c) sets out the factors a
court should consider in making a custody determination according
to a child's best interests. One of these factors is the
"physical, emotional, mental, religious, and social needs of the
child." AS 25.24.150(c)(1).
3 Don's brief relates his conversations with two
Anchorage School District officials regarding half-day and full-
day kindergartens. He claims that full-day kindergartens use the
extra time only for free play and arts activities designed to
sharpen the children's socialization and verbal skills. Don
claims to be a very active parent and suggests that Justin will
better acquire such skills at home.
4 The findings need not be extensive, but must
either give us a clear indication of the factors which the
superior court considered important in exercising its discretion
or allow us to glean from the record what considerations were
involved. See Julsen v. Julsen, 741 P.2d 642, 649 n.10 (Alaska
1987) (rejecting need for express tally of all statutory factors
where record reflects careful scrutiny by superior court);
McClain v. McClain, 716 P.2d 381, 384-85 (Alaska 1986) (holding
lack of specific findings under statute not necessarily fatal to
initial custody order where reviewing court can glean factors
from record to support more general findings).
5 Lynn argues that Civil Rule 52(a) does not require
findings. Rule 52(a) provides that in all "actions" without a
jury, the trial court shall make specific findings of fact and
conclusions of law; but "[f]indings of fact and conclusions of
law are unnecessary on decisions of motions under Rules 12 or 56
or any other motion except as provided in Rule 41(b)." (Emphasis
added.) Because her pleading to the trial court was titled
"Motion for Minor Child to Attend Orion Elementary School," she
argues that Rule 52(a) applies.
This argument fails. The moniker "motion"on papers
submitted to a trial court does not relieve that court from its
duty to explain its reasoning in child custody issues, especially
where its order operates as a final judgment. This court has
consistently required findings from a trial court after a party
moves for a child support or custody order. See Waggoner, 904
P.2d at 1235 (remanding for specific findings after trial court
denied motion to modify divorce decree); Keating v. Traynor, 833
P.2d 695, 696-97 (Alaska 1992) (remanding for specific findings
after trial court modified support order as requested by CSED
6 We decide this case as presented because the parties
have submitted to the court's authority and neither party has
questioned the wisdom of having a court choose Justin's
kindergarten. We take this opportunity, however, to express our
substantial reservations about the submission of this type of
decision to a judicial tribunal.
We recognize that other courts, at least intermediate
appellate courts, have decided similar cases and have indicated
that the subject matter is appropriate for judicial review. See,
e.g., Lombardo v. Lombardo, 507 N.W.2d 788, 791-92 (Mich. App.
1993) ("[J]oint custody in this state by definition means that
the parents share the decisionmaking authority with respect to
the important decisions affecting the welfare of the child, and
where the parents as joint custodians cannot agree on important
matters such as education, it is the court's duty to determine
the issue in the best interests of the child."). However, we are
convinced that the choice of school for a young child should lie
with the parents, and not with a judge.
The Alaska Legislature has expressed a policy favoring
joint custody wherever practicable. See ch. 88, ' 1, SLA 1982
("[I]t is in the public interest to encourage parents to share
the rights and responsibilities of child rearing. . . . The
legislature also finds that it is in the best interests of a
child to encourage parents to implement their own child care
agreements outside of the court setting."); Bell v. Bell, 794
P.2d 97, 99 (Alaska 1990).
This does not mean, however, that joint legal custody
is always appropriate. We have noted that "cooperation between
parents is essential if the arrangement is to be in the best
interests of the child." McClain, 716 P.2d at 386. Joint legal
custody is predicated upon the parents' ability to reach ultimate
agreement on the important decisions involved in child rearing.
Where the parents cannot agree on these issues, "this may
indicate a lack of the cooperation necessary for joint custody to
be successful." Id.; see also Farrell v. Farrell, 819 P.2d 896,
899 (Alaska 1991) (joint legal custody only appropriate where
parents can cooperate); Bell, 794 P.2d at 99 (same); Smith v.
Smith, 673 P.2d 282, 283 (Alaska 1983) (inability to cooperate in
making decisions furnishes sufficient basis in law for court to
reject joint custody). The submission of the choice of
kindergartens for the child to the court is indication in itself
that a joint decisionmaking arrangement is not working, at least
with respect to educational decisions.
In the future, a judge faced with a similar motion may
choose to treat it as one to modify the joint custody arrangement
with respect to educational issues, assuming the parties can
continue to agree on other issues. The court could then order
further briefing from the parties as to which parent should be
granted authority to make educational decisions. While a
judicial tribunal may be ill-equipped to decide which school a
child should attend, it is competent to decide who should decide.