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Mariscal v. Watkins (4/12/96), 914 P 2d 219
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NOTICE: This opinion 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
CELESTE S. MARISCAL, )
) Supreme Court No. S-6808
Appellant, )
) Superior Court No.
v. ) 3KO-94-55 CI
)
DEREK A. WATKINS, ) O P I N I O N
)
Appellee. ) [No. 4335 - April 12, 1996]
______________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Kodiak,
Donald H. Hopwood, Judge.
Appearances: Melvin M. Stephens, II, Kodiak,
for Appellant. No appearance for Appellee.
Before: Rabinowitz, Matthews, Compton, and
Eastaugh, Justices. [Moore, Chief Justice,
not participating.]
RABINOWITZ, Justice.
I. INTRODUCTION
Pursuant to the superior court's final orders regarding
child custody and support, Celeste Mariscal was awarded primary
legal custody of her three-year old son Zachory. Mariscal now
appeals several aspects of the superior court's orders regarding
child support and custody. These include provisions prohibiting
the consumption of alcohol and engaging in "inappropriate sexual
conduct," the superior court's calculation of Mariscal's Civil
Rule 90.3 income, and the contingent visitation schedule
fashioned by the superior court.
II. FACTS & PROCEEDINGS
Mariscal met Zachory's father, Derek Watkins, in Kodiak
in 1989. They began living together in August of that year.
Zachory was born in December of 1991. Mariscal and Watkins
separated and reconciled several times between 1989 and July
1993, when they permanently separated.
In early 1994 Mariscal filed a petition, pursuant to AS
25.20.060, seeking child support and full custody of Zachory. In
his answer, Watkins also sought full custody of Zachory. The
parties agreed to an interim custody arrangement in which Zachory
would live roughly half the week with each of his parents. The
parties also agreed to divide evenly Zachory's day care expenses.
The superior court held a trial in the fall of 1994.
At trial Mariscal presented evidence of several incidents in
which Watkins was verbally abusive to her and engaged in
harassing behavior -- for example, calling her repeatedly at work
and ransacking her apartment. In some of these incidents, either
Zachory was present or Watkins actively sought to interject
Zachory into the dispute between himself and Mariscal.1 However,
Mariscal also testified that Watkins had never physically abused
her.
The superior court ordered that a custody investigator
be appointed. The investigator prepared a report and testified
at trial. The report was based on meetings with both parents
with Zachory present, as well as telephonic interviews with
various personal and professional references. At trial, the
custody investigator testified that the parties' parenting styles
complemented each other with Mariscal being more "parental" and
Watkins being more of a "buddy"to Zachory. Because Zachory
would benefit from significant contact with both parents, the
custody investigator recommended that shared physical and legal
custody be continued and recommended that the parents enter co-
parenting counseling to work out the emotional issues between
them.
The superior court awarded sole legal custody of
Zachory to Mariscal. As to physical custody, the superior court
concluded that "Zachory needs to be exposed to the value systems
of both parents so that he can learn and grow to become a
responsible adult." However, at trial Watkins testified that he
planned to move to the Wasilla area and Mariscal testified that
she might relocate to Anchorage sometime in the future. Because
of this uncertainty as to the parents' future locations, the
superior court fashioned elaborate alternative visitation
schedules contingent on whether Mariscal and Watkins lived within
one hundred driving miles of each other.
If Mariscal and Watkins live within one hundred miles
of each other, the superior court ordered that the visitation
schedule established in the interim custody order be continued.
Thus, Watkins would have physical custody from 7:45 a.m. on
Monday through 5:00 p.m. on Thursday. The parties would split
transportation expenses with each being responsible for
transporting Zachory once a week. If the parties lived more than
one hundred miles from each other but both within Alaska, Watkins
would have custody the first week and third weekend of every
month. The full cost of transportation would be borne by the
parent who moved more than one hundred miles from the other. In
either case, the court-imposed schedule would continue until
Zachory begins to attend school, at which point the parents were
to agree on a new schedule. Finally, if either party moved
outside of Alaska then the parties would have to agree on custody
arrangements, submitting to mediation if no agreement could be
reached.
The superior court's findings of fact and conclusions
of law also contained numerous conditions of custody. These
included, inter alia, (1) that "[n]either party shall expose
Zachory to inappropriate sexual behavior"; (2) that "[n]either
party shall use or be under the influence of alcohol or illegal
drugs while Zachory is in his or her custody"; and (3) that
"[n]either party shall drive with the child as a passenger within
12 hours after having consumed alcohol." Additionally, the
superior court established a child support order pursuant to
Alaska Civil Rule 90.3 and ordered that Watkins reimburse
Mariscal for half of certain medical and day care expenses which
she previously incurred.
Subsequently, the superior court denied Mariscal's
motion to amend and supplement its findings of fact and
conclusions of law. The superior court then entered a final
judgment in the matter. Mariscal now appeals.
III. DISCUSSION2
A. The Superior Court's Restrictions Regarding
Alcohol Consumption and Sexual Behavior
Mariscal challenges three conditions of custody which
were included in the superior court's order. As noted above, the
superior court imposed the following conditions regarding the
consumption of alcohol: (1) that "[n]either party shall use
. . . alcohol . . . while Zachory is in his or her custody"; and
(2) that "[n]either party shall drive with the child as a
passenger within 12 hours after having consumed alcohol."
Mariscal first notes that the superior court found
"that there is no evidence of alcohol abuse. She's an
occasional, moderate, and social drinker. There's no abuse. Her
consumption is limited and controlled . . . ." In light of these
findings, Mariscal argues that it was an abuse of discretion to
impose such stringent limitations on her use of alcohol. She
argues that the conditions would prohibit her from even having a
single glass of wine with dinner so long as Zachory was in her
custody. Further, the conditions are arbitrary because the
twelve hour waiting period between having a drink and driving
would, for example, prevent her from driving with Zachory in the
car the morning after she had a single drink the night before.
As to the superior court's provision that neither
parent expose Zachory to "inappropriate sexual behavior,"
Mariscal argues that the provision is "demeaning"and that it is
"entirely inappropriate for a court gratuitously to incorporate
such a condition into a custody order in the complete absence of
any evidence suggesting the existence of a problem."
Provisions of a custody award must be supported by
findings of fact demonstrating that the superior court properly
considered the best interests of the child.3 We have previously
stated that such factors as a parent's sexual conduct are only
relevant insofar as "it may be shown to affect the person's
relationship to the child."4 Further, absent evidence of such an
effect, we have cautioned trial courts against reference to such
factors "[t]o avoid even the suggestion that a custody award
stems from a life style conflict between a trial judge and a
parent."5 This caution reflects not only a concern that the
superior court consider proper factors in making a custody
decision, but also that the superior court not unnecessarily
impose its moral values upon a litigant.
These principles are applicable to the superior court's
imposition of the questioned conditions of custody. In the
instant case, the superior court made no findings with respect to
Mariscal's sexual conduct, and specifically found that there was
no evidence of alcohol abuse on her part. Additionally, we are
of the view that the conditions prohibiting use of alcohol when
Zachory is in her custody, as well as driving with Zachory within
12 hours after having consumed alcohol, are unreasonably
burdensome and insufficiently related to Zachory's best
interests. We therefore conclude that the imposition of these
conditions was an abuse of discretion, and therefore all three
conditions should be vacated.
B. The Superior Court's Civil Rule 90.3 Calculation
Mariscal argues that the superior court erred in
calculating her Civil Rule 90.3 child support obligation because
it included income from a second part-time job. According to
Mariscal she took this waitressing job in January 1994 to pay off
approximately $7,000 in outstanding bills from Zachory's birth.
She testified that although she was working as much as three
times a week earlier in the year, she had cut back her schedule
recently because at the time of trial, business was slow.
Mariscal argues that this amount should be excluded.
However, this issue is not ripe for our consideration.
After Mariscal filed this appeal, Watkins moved to Oregon. He
does not presently have physical custody of Zachory for at least
thirty percent of the year. Thus, the parties do not have
"shared physical custody"as defined in Civil Rule 90.3(f)(1).
As a result, child support is calculated pursuant to Civil Rule
90.3(a) rather than 90.3(b), and Mariscal's Rule 90.3 income is
irrelevant for purposes of determining Watkins' child support
obligation. The superior court's order provides for this
contingency in that it provides that the appropriate section of
Rule 90.3 should be applied based on whether the actual physical
custody is primary or shared.
Since presently there is not shared physical custody,
Watkins' support obligations are calculated according to only his
own income. If and when Watkins assumes shared physical custody,
then support will be calculated in accordance with 90.3(b) under
the order and the court's determination of Mariscal's income will
become ripe for review. Because Mariscal's income is irrelevant
to a determination of Watkins' support obligations, and may not
ever become relevant, we do not reach the issue of whether
Mariscal's adjusted annual income should include income from her
second job.6
C. The Superior Court's Contingent Visitation Schedule
According to Mariscal, Watkins has not indicated when
and if he plans to move back to Alaska from Oregon. Because one
of the parties has moved outside of Alaska, the superior court
order directs the parties to agree on custody arrangements and
submit to mediation if they cannot agree. As such, the superior
court's detailed and potentially burdensome provisions regarding
visitation, which Mariscal challenges, are not presently
applicable.
Because none of these challenged provisions is
presently operative, we conclude that Mariscal's appeal of these
visitation provisions is not ripe for adjudication.7 Therefore
we do not address Mariscal's various challenges to the superior
court's visitation provisions.
There is one aspect of the superior court's visitation
decision which should be addressed at this time. Mariscal argues
that in granting Watkins visitation, the superior court gave
insufficient weight to the evidence of Watkins' abusive and anti-
social conduct.8 The superior court's findings reveal that the
superior court did consider this conduct. However, Mariscal
argues that in light of these findings it was an abuse of
discretion on the superior court's part to grant Watkins
extensive visitation.
Mariscal gives an incomplete picture as to the superior
court's assessment of the situation. The superior court noted
that there remained a "substantial amount of intranquility . . .
between Zachory's parents." For Watkins this had manifested
itself in extreme jealousy resulting in "yelling and accusations,
inappropriate phone messages, and the involvement of Zachory in
those instances." However, the problems were not unilateral.
The superior court also noted that Mariscal was "immature in how
she conducts her relationships"and "uses Zack as a weapon
against [Watkins]." Despite these problems between each other,
the superior court observed that there was an "excellent
relationship between Zachory and each of his parents." Relying
on the testimony of the custody investigator, the court found
that the parenting styles of Watkins and Mariscal were
complementary and that Zachory would benefit by exposure to both.
The superior court particularly commended Watkins for his
"willingness to learn parenting skills"and his work to develop a
support network.
Thus, it appears from the record that most of the
problems resulted from the parties' inability to cope with their
separation. However, noting that the parties had demonstrated an
ability to improve themselves individually, the superior court
indicated its hope that the parties could improve their ability
to cooperate with each other. The record includes testimony that
Watkins loves his child and shows a "genuine concern for
Zachory's care and upbringing"; Mariscal's testimony that despite
Watkins' jealous behavior, he never physically abused her; and an
evaluation from the custody investigator that Watkins was a fit
parent. In view of the record, we conclude that the superior
court did not abuse its discretion in ordering divided physical
custody of Zachory until he reaches school age.9
IV. CONCLUSION
The superior court abused its discretion by including
provisions in its final orders prohibiting Mariscal from engaging
in inappropriate sexual conduct, prohibiting Mariscal from
consuming any alcohol while Zachory is in her custody, and
prohibiting Mariscal from driving with Zachory as a passenger
within 12 hours after having consumed alcohol. These provisions
are VACATED.
The superior court's order that Watkins have
substantial visitation with Zachory until he reaches school age
was not an abuse of discretion, and is AFFIRMED.
_______________________________
1 For example, at trial, Mariscal presented an audio
tape from her answering machine. During the course of a series
of calls, Watkins first accused Mariscal of sleeping with several
other men. In the later calls, Watkins put Zachory on the phone
and is heard whispering in the background, "Say 3Why don't you
want to talk to me?3 . . . Ask Mama why she doesn't want to talk
to you."
Additionally, Mariscal testified that during the course
of one argument, Watkins went to his room and put a gun in his
pocket. He then picked Zachory up out of his crib and returned
to the living room.
2 The superior court is vested with broad discretion in
making child custody determinations. Gratrix v. Gratrix, 652
P.2d 76, 79 (Alaska 1982).
This court will reverse the superior court's
resolution of custody issues only if this
court is convinced that the record shows an
abuse of discretion or if controlling factual
findings are clearly erroneous. Abuse of
discretion is established if the trial court
considered improper factors or failed to
consider statutorily-mandated factors, or
improperly weighted certain factors in making
its determination.
McQuade v. McQuade, 901 P.2d 421, 426 n.9 (Alaska 1995)
(citations omitted).
3 See Hakas v. Bergenthal, 843 P.2d 642, 644-45 (Alaska
1992).
4 Britt v. Britt, 567 P.2d 308, 311 (Alaska 1977).
5 Craig v. McBride, 639 P.2d 303, 306 (Alaska 1982).
6 See Bowers Office Prod. v. University of Alaska, 755
P.2d 1095, 1098-99 (Alaska 1988); cf. Tulkisarmute Native
Community Council v. Heinze, 898 P.2d 935, 940 n.7 (Alaska 1995).
7 See Bowers, 755 P.2d at 1096; Lamoreux v. Langlotz, 757
P.2d 584, 585.
8 In its oral and written findings, the court noted that
Watkins had used various controlled substances, had threatened
other men who he believed were involved with Mariscal, and had
generally been verbally abusive toward Mariscal.
9 The superior court concluded that once Zachory reaches
school age, his parents are to agree to a new visitation
schedule. Because Zachory was almost three years old at the time
the superior court entered its December 1994 custody order, it is
by its own provisions relatively short-term.
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