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Duffus v. Duffus (2/28/97), 932 P 2d 777
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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, phone (907) 264-0607,
fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
KENNETH M. DUFFUS, )
) Supreme Court No. S-7583
Appellant,)
) Superior Court No.
v. ) 3AN-89-681 CIV
)
JULIANN N. DUFFUS, ) O P I N I O N
)
Appellee. ) [No. 4788 - February 28, 1997]
)
Appeal from the Superior Court of the State of Alaska,
Third Judicial District, Anchorage,
Karen L. Hunt, Judge.
Appearances: Allen M. Bailey, Law Offices of Allen M.
Bailey, Anchorage, for Appellant. Donald M. Johnson,
Law Offices of Donald M. Johnson, P.C., Anchorage, for
Appellee.
Before: Compton, Chief Justice, Rabinowitz, Matthews,
Eastaugh, and Fabe, Justices.
COMPTON, Chief Justice.
FABE, Justice, with whom EASTAUGH, Justice, joins,
concurring.
RABINOWITZ, Justice, dissenting.
I. INTRODUCTION
Kenneth Duffus appeals the superior court's denial of a
motion to modify a child custody order. We affirm the decision
below and remand the case for amendment of the order's provision
regarding disclosure of crucial information to the children.
II. FACTS AND PROCEEDINGS
Kenneth and Juliann Duffus were married in 1978. They
have two children, Elizabeth (Beth), born in 1983, and Michelle,
born in 1987. Kenneth and Juliann were divorced in 1990. They
agreed that Juliann would have sole legal and primary physical
custody, while Kenneth would retain visitation rights.
In July 1994 Juliann's job was eliminated. In October
she accepted a job offer in Colorado and moved there the following
month, taking the children with her. Since the move, Beth has
expressed a desire to live in Alaska, while Michelle would rather
spend the school year in Colorado and vacations in Alaska.
However, the custody investigator testified that both children
truly wish to maintain the status quo.
Following her move to Colorado, Juliann has canceled or
shortened all of Kenneth's visits. A visit planned for
Thanksgiving 1994 was canceled by Juliann. (EN1) As a result,
Juliann was fined and ordered to return the children to Alaska by
December 18 for a Christmas visit. Juliann did bring the children
to Anchorage, but cut the visit from fifteen days to six days. In
March 1995 Juliann sent Kenneth a letter stating she would not
allow the children to visit him that summer unless he secured a
court order for their return. Juliann eventually brought the
children to Alaska for their visit, but she delayed that visit from
June 15, as required by court order, to July 4. Throughout this
period, Kenneth refused to discuss any visit arrangements with
Juliann. Indeed, since the move the parties have demonstrated a
near-total inability to communicate with each other in any
meaningful way.
In the course of visitation disputes, Kenneth discovered
that Doug Glynn, Juliann's apparent paramour, had become involved
in the children's lives. Glynn was convicted of molesting several
male children over a decade ago. He has shown unusually positive
signs of reform by admitting his crimes, cooperating fully with
treatment efforts, and seeking help on his own initiative whenever
he fears a relapse. However, Glynn is not "cured,"and his
probation order prohibits him from being alone with any child.
Glynn is present in Juliann's home every day after work
until the family goes to bed. He answers the telephone and has
received certified mail at Juliann's home. He also has spent brief
periods of time alone with the children. For instance, on several
occasions, the children answered Juliann's telephone and passed it
to Glynn after stating that their mother was not home. Private
investigators also observed Glynn and the children alone for
several brief periods. Juliann has not told the children of
Glynn's past.
Following Juliann's move and the visitation disputes,
Kenneth moved to modify custody. The superior court denied the
motion. This appeal followed.
III. DISCUSSION
A. Standard of Review
"This court will overturn a lower court's resolution of
a custody issue (EN2) only when there is an abuse of discretion or
where there are clearly erroneous findings of fact." Bird v.
Starkey, 914 P.2d 1246, 1248 (Alaska 1996) (citations omitted)
(when trial court made no findings whatsoever, case was remanded
for "findings of fact which address all relevant criteria of AS
25.24.150(c)"). "We deem a factual finding to be clearly erroneous
when we are left with a definite and firm conviction on the entire
record that a mistake has been made, even though there may be
evidence to support the finding." Brosnan v. Brosnan, 817 P.2d
478, 480 (Alaska 1991) (citation omitted). A trial court will be
found to have abused its discretion if it "failed to consider
statutorily-mandated factors, or improperly weighed certain factors
in making its determination." Bird, 914 P.2d at 1248 (citations
omitted). Hence, a trial court is required to make findings on the
various statutory factors which are sufficient to make the basis of
its decision susceptible to review. Id.
Kenneth raises a number of discrete issues on appeal,
many of which concern the trial court's alleged failure to make
findings addressing "all relevant criteria of AS 25.24.150(c)."
However, Kenneth's primary argument concerns the presence of Glynn
in the children's lives, and the potential threat which Kenneth
contends Glynn presents. (EN3) None of Kenneth's claims carry
sufficient weight to compel reversal.
B. The Trial Court's Findings Adequately Address All
Relevant Statutory Criteria.
Under Bird, the trial court was required to make
"findings of fact which address all relevant criteria of
AS 25.24.150(c)." Bird, 914 P.2d at 1249. Alaska Statute
25.24.150(c)(6) directs the court to consider "the desire and
ability of each parent to allow an open and loving frequent
relationship between the child and the other parent." See
Pinneo v. Pinneo, 835 P.2d 1233 (Alaska 1992)(custodial parent's
efforts to sever other parent's relationship justified custody
change). Kenneth argues that since the court's written order lacks
an express finding on this factor, the court's findings do not
adequately address this issue.
This contention is contradicted by the record. While
trial courts are encouraged to state all findings in their written
orders, they are not required to do so as long as the basis for
their decisions is clear from the record and thus susceptible to
review. The court's oral order included findings that "both
parents' conduct toward each other is outrageous . . . Each of
these parents fail in their communication with each other,
communication which is absolutely necessary for their children's
well being . . . Neither one of them respect their children well
enough . . . to communicate with the children's other parent . . .
[and] the victims . . . are the children." The court determined
that both parents were at fault for the visitation problems, and
that the only way to resolve the matter was "to order in minute
detail any and all visitation and communication that the other
parent is permitted or allowed." Moreover, the written order
directly addressed this issue by providing detailed visitation
guidelines. Taken together, the court's oral findings, as
effectuated by its written order, are adequate to address the
statutory factor and clarify the basis for the court's decision on
this issue.
In addition, Kenneth notes that under AS 25.24.150(c)(3),
the trial court was required to consider "the child's preference if
the child is of sufficient age and capacity to form a preference."
See Rooney v. Rooney, 914 P.2d 212, 217 (Alaska 1996) (statutory
standard is meant to give weight to child's wishes). Kenneth
argues that the court failed to make the required finding.
This contention also lacks merit. The court's written
order noted that "the children are of sufficient age to formulate
and express a preference and have done so with the custody
evaluator." While this statement in and of itself does not outline
or weigh the children's preferences, the statement adopts the
conclusion of the custody investigator. The investigator does
identify a preference on the part of both children to spend school
years with their mother and summers with their father. The court
followed this preference. Hence, the trial court's adoption of the
investigator's conclusion adequately addresses the relevant
statutory factor.
C. The Trial Court Did Not Err in Refusing to Modify Custody
in Light of Glynn's Presence.
The heart of Kenneth's appeal is his contention that the
trial court's finding that Glynn does not constitute a threat to
the physical or emotional well-being of the children was clearly
erroneous. While Kenneth's concerns in this regard are
understandable, we conclude that the trial court did not err in
resolving this issue.
There is no bright line rule against the involvement of
any specific category of persons in a household which includes
children. In making a custody determination, the court considers
only "facts directly affecting the child's well-being." S.N.E. v.
R.L.B., 699 P.2d 875, 878 (Alaska 1985)(absent any showing that
mother's lesbian status adversely affected the child, mother's
lesbian status had no bearing on custody decision). Kenneth has
not demonstrated that Glynn presents a threat to the children's
physical or emotional well-being, and therefore his argument fails.
The trial court heard substantial evidence indicating
that Glynn does not present a physical threat to the children.
Glynn's rehabilitation efforts have been exemplary. He has
admitted his crimes, completed the state's treatment program, and
sought help on his own initiative when he feared relapses might
occur. Glynn's parole officer told the custody investigator that
Glynn was one of only two out of ninety sexual offenders she had
supervised who appeared to be "likely not to re-offend." While
Glynn has broken probation by being alone with the children for
brief periods, the investigator testified that the breach was
insignificant, and that Glynn generally displayed great caution
regarding probation. None of this evidence was refuted by Kenneth.
Moreover, the trial court took steps to ensure that Glynn
remains in remission. The court's order requires that Glynn
establish a support system in Colorado, and that he provide written
notice, within six months of the court's decision, that such a
system was in fact in place. These requirements provide an
additional safeguard for the children by ensuring that Glynn's
rehabilitation efforts will continue if he remains part of the
children's lives. The court also required Juliann to provide sixty
days' written notice before Glynn begins to reside with her, or if
the two of them plan to marry.
In the absence of any evidence that Glynn presents a
threat to the physical well-being of the children, we cannot form
"a definite and firm conviction on the entire record that a mistake
has been made"in finding that Glynn does not pose a threat to the
physical well-being of the children. Brosnan, 817 P.2d at 480. In
light of that finding, and the broad discretion with which the
superior court is vested, the court's resolution of this issue was
not an abuse of discretion. Id.
Kenneth also argues that Glynn's presence in the
children's lives constitutes an emotional threat to the children,
who will be hurt by the revelation that their mother has held back
such important information from them. The court found that the
damage caused by secrecy does not militate in favor of a custody
change, since this harm would occur no matter which parent had
custody. No evidence contradicting that finding was presented.
Again, reviewing the entire record, we cannot form a definite and
firm conviction that a mistake has been made. The finding is not
clearly erroneous. Moreover, the court's conclusion is logically
sound, since no matter where the children are living, they will
know their mother withheld crucial information when and if they
learn of Glynn's past. In addition, the court acted to ensure that
the revelation of Glynn's past will cause as little emotional harm
as possible, by requiring that "[i]f Mr. Glynn is to remain
involved with [Juliann, she] shall, within three months of the date
of this order obtain the advice of a counselor . . . as to how to
prepare the children for revelation of Mr. Glynn's past." The
court's resolution of this issue also was not an abuse of
discretion.
We note, however, that this provision does not clearly
require that the children be informed of any restrictions on
Glynn's activities with them. In our view, the superior court on
remand should modify paragraph 7 of the custody and visitation
order to address the issue of informing the children that Glynn is
not to be alone with them (as required by his probation), and that
they should report inappropriate behavior by Glynn or any other
person to some responsible adult. Further, the court should
require that both the father and the court be advised of the
substance of the information imparted to the children on this
topic.
IV. CONCLUSION
The trial court made findings which adequately addressed
"all relevant criteria of AS 25.24.150(c)." In addition, the
court's finding that Glynn does not pose a threat to the well-being
of the Duffus children was not clearly erroneous in light of the
unrefuted evidence supporting that determination. Lastly, the
superior court found, and upon its findings, concluded that
[t]he only significant change that has
occurred since the original custody order was
entered bearing on the best interests of the
children is the relationship that has
developed between plaintiff and Mr. Glynn
which the court has discussed above, and the
concerns raised by the custody evaluator and
shared by the court can be resolved in the
Custody and Visitation Order which the court
will enter.
We conclude that the superior court's denial of the
motion to modify custody was not an abuse of discretion.
Accordingly, the decision of the superior court is AFFIRMED. The
case is REMANDED for modification of the order as specified above.
FABE, Justice, with whom EASTAUGH, Justice, joins,
concurring.
Although I agree with the result reached by the court, I
write separately to articulate my differences with the court's
reasoning. As the dissenting opinion makes clear, the court must
look to the best interests of the child in modifying existing
custodial arrangements. AS 25.20.110(a). While the court's
opinion notes this standard in a footnote, it focuses primarily on
whether Glynn represents a threat to the children. This focus
suggests too high a threshold; even in the absence of a physical or
emotional threat, a child's best interests could favor a
modification of custody arrangements. As the dissent again
correctly states, the court must also examine any potential effect
on the children's emotional and psychological well-being of "the
frequent presence in their home of a man whom they know to have
repeatedly molested children in the past,"especially in
"situations where they are alone with Glynn."(EN1) Dissent at 16.
However, I do not agree with the dissent that these
concerns for the children's well-being require a remand for further
findings after disclosure of Glynn's past to the children. The
superior court, especially in light of the custody investigator's
report and recommendations, crafted a balanced solution by ordering
that Juliann give sixty days notice if Glynn plans to move into her
home or the two of them plan to marry. This provides the
opportunity for the court to review the matter and make any further
provisions for the girls' emotional safety that may become
necessary. The court's opinion further improves upon this solution
by requiring that the children be informed that Glynn is not to be
alone with them and that they should report any inappropriate
behavior. Should Glynn begin to live in the household with the
children, this would constitute a change in circumstances that
would justify a new inquiry into their best interests. If the
children express a preference for living with their father after
the disclosure required by the court's opinion, this shift in
preference would also constitute a change of circumstances
justifying a new best interests analysis.
In summary, my difference with the court's opinion is
primarily in emphasis. I believe that the court's analysis should
be couched more explicitly in terms of the children's best
interests. My difference with the dissenting opinion is primarily
in timing. While Justice Rabinowitz would prefer a second best
interests analysis prior to a resolution of the custody dispute, I
do not think that this is necessary since a change in the
children's preferences would automatically trigger renewed
consideration of their best interests. For these reasons, I concur
in the court's opinion.
RABINOWITZ, Justice, dissenting.
The standard which governs a motion to alter existing
custodial arrangements is the best interests of the child. Long v.
Long, 816 P.2d 145, 150 (Alaska 1991). Without any awareness of
Glynn's past conduct or present status, Beth and Michelle are
spending significant amounts of time, some of it alone, with a
convicted child molester who is not cured and therefore is
prohibited by probation order from being alone with any child.
(EN1) I do not believe that this situation is in the best
interests of the Duffus children.
As the court recognizes, the mother's involvement with
Glynn does not necessarily require that the Duffus girls be removed
from her custody. Indeed, "[t]here is no bright line rule against
the involvement of any specific category of persons in a household
which includes children. In making a custody determination the
court considers only 'facts directly affecting the child's well-
being.'" Op. at 7. In my view, the superior court could not
adequately determine how Glynn's involvement in the Duffus
children's lives would affect their well-being until the girls were
apprised of the circumstances surrounding his past antisocial
conduct and the terms of his current probation order. Accordingly,
the best interests of Beth and Michelle cannot be meaningfully
evaluated until this extremely relevant information is conveyed to
them, and the impact of such disclosure on the two minor children
is assessed.
The court's reliance on S.N.E. v. R.L.B., 699 P.2d 875,
878 (Alaska 1985), holding that lesbian status has no bearing on a
custody decision, to support its conclusion is misplaced. At stake
here is more than Glynn's status as a treated child molester. (EN2)
The question, rather, given the best interests standard which
governs custody determinations, is whether the Duffus children will
feel safe and secure in an environment in which Glynn is frequently
present, at times without the presence of other adults. If Beth
and Michelle -- with full awareness of the circumstances -- do not
psychologically or emotionally feel safe and secure in Glynn's
presence, the home environment is unlikely to be one in which the
girls' well-being will be served. This is true even if Glynn does
not pose any actual danger to the children.
This court's previous cases require a reasonable nexus
between the status or conduct in question and the well-being of a
child. They do not require that the child be in actual danger, the
standard impliedly imposed by the superior court and affirmed by
the court's opinion. (EN3) As we stated in S.N.E.:
When a court determines the best
interests of the child under the changed
circumstances doctrine, the scope of judicial
inquiry is limited to facts directly affecting
the child's well-being. . . .
For example, that a mother is living with
another man in an adulterous relationship does
not justify denying her custody absent any
indication of adverse effects on the child.
Nor does bearing children out of wedlock or
instability in relationships warrant a custody
change where the parent's conduct does not
adversely affect the child or the mother's
parenting abilities. Even the mental health
of the custodial parent is "relevant only
insofar as it has or can be expected to
negatively affect the child."
S.N.E., 699 P.2d at 878 (footnote and citations omitted, emphasis
added).
It is reasonable to believe that Beth and Michelle might
be adversely affected by the frequent presence in their home of a
man whom they know to have repeatedly molested children in the
past. Moreover, the children's emotional and psychological well-
being might well be affected in situations where they are alone
with Glynn. Since the superior court made its determination as to
custody before the children were made aware of Glynn's past conduct
and present status, one can only speculate as to the revelation's
effect on the Duffus girls. I thus conclude that the superior
court abused its discretion in making what is meant to be a best
interests determination before it was in a position to ascertain
the impact of disclosure on the children. (EN4)
Moreover, I believe that the superior court's mandated
consideration of the children's preference was inadequate, given
the lack of information available to Beth and Michelle when they
"chose"to live with Juliann. Because the children did not know of
Glynn's past or current treatment status, they could not have
expressed an informed preference as to custody arrangements. See
AS 25.24.150(c)(3); Rooney v. Rooney, 914 P.2d 212, 217 (Alaska
1996).
As the superior court recognized and the court's opinion
affirms, the children are "of sufficient age to formulate and
express a preference"as to custody arrangements. The superior
court was required to consider these preferences. To the extent
that they were based on flawed or severely limited information, the
stated preferences of Beth and Michelle should not have provided a
basis for the custody decision. (EN5)
The appropriate time at which to make a determination of
the Duffus children's best interests would be after the passage of
a reasonable time following disclosure of Glynn's past conduct and
present condition. Admittedly on the record we do have, the
superior court might reasonably conclude that remaining in
Juliann's custody is in the best interests of the children.
However, for the reasons discussed in this separate opinion, I
believe that the superior court erred in reaching its custody
determination based on the evidence before it. Rather, the custody
issue should be remanded to the superior court for further findings
after disclosure has been made to Beth and Michelle of Glynn's past
conduct and present condition, and a reasonable period has elapsed
within which to assess the impact on their well-being of such
disclosures.
ENDNOTES:
1. Kenneth refused to discuss the visit, and simply ordered
Juliann to put the children on a plane at a time he designated.
Juliann refused to comply because she felt the children would miss
too many days of school.
2. The court will modify a child custody award if "a change in circumstances
requires the modification of the award and the modification is in the best
interests of the child." AS 25.20.110. Once a party demonstrates a substantial
change in circumstances, as the parties concede has occurred here, the court must
consider "whether, in light of such changed circumstances, it is in the child's
best interest to alter the existing custodial arrangement."Long v. Long, 816
P.2d 145, 150 (Alaska 1991) (citations omitted).
3. Kenneth's motion was originally motivated by the disputes surrounding visitation in the
wake of Juliann's move. However, the focus of his claim shifted after proceedings began and
Kenneth learned of Glynn's involvement with Juliann.
ENDNOTES (Concurrence):
1. I also agree with the dissent that the issue before the court
is not Glynn's status as a treated child molester, but the nexus
between his status or conduct and the children's well-being.
Dissent at 14. The trial court understood this nexus and took it
into account.
ENDNOTES (Dissent):
1. As stated in the court's opinion,
Glynn was convicted of molesting several male
children over a decade ago. . . . Glynn is not
"cured,"and his probation order prohibits him
from being alone with any child.
Glynn is present in Juliann's home every day
after work until the family goes to bed. . . .
He also has spent brief periods of time alone
with the children. . . . Juliann has not told
the children of Glynn's past.
Op. at 3.
2. As Glynn's probation officer admits, "His sexual urges towards
minor males have diminished from the time of his offense, but have
not been entirely eliminated. This is consistent with what other
therapists have reported, insofar as there is no 'cure.'"
3. As stated in the court's opinion:
The heart of Kenneth's appeal is his
contention that the trial court's finding that
Glynn does not constitute a threat to the
physical or emotional well-being of the
children was clearly erroneous. While
Kenneth's concerns in this regard are
understandable, we conclude that the trial
court did not err in resolving this issue.
. . . .
In the absence of any evidence that Glynn
presents a threat to the physical well-being
of the children, we cannot form "a definite
and firm conviction on the entire record that
a mistake has been made"in finding that Glynn
does not pose a threat to the physical well-
being of the children.
Op. at 7-8.
4. The superior court's order provides:
If Mr. Glynn is to remain involved with the
plaintiff, plaintiff shall, within three
months of the date of this order obtain the
advice of a counselor or other expert in the
field as to how to prepare the children for
revelation of Mr. Glynn's past and of the best
way to integrate him into the family unit
without threat to the children or him.
This provision seems to contemplate the possibility that the
revelation of Glynn's condition could potentially have adverse
consequences on Beth and Michelle, and seeks to mitigate those
consequences. However, the order does not require Juliann to
disclose the information, but is simply reactive to the likely
possibility that the girls will somehow discover it for themselves.
This in itself is problematic. Whatever threat Glynn's condition
poses to the children's emotional and physical well-being could be
addressed, at least in part, by Beth and Michelle being made aware
that they are not to be alone with Glynn, according to the terms of
his probation, and that certain behavior on Glynn's part should
immediately be reported if it occurs. Given that these conditions
have not been imposed, I agree with the court's decision to remand
this matter to the superior court for modification of the relevant
provision.
5. See John P. McCahey, Child Custody & Visitation Law and
Practice sec. 10.08[3] (1993) ("a frequently recurring concern [in
assessing the weight given a child's preference] is whether or not
a child is able to express an informed, intelligent and sound
preference") (emphasis added).
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