You can
search the entire site.
or go to the recent opinions, or the chronological or subject indices.
Borchgrevink v. Borchgrevink (6/27/97), 941 P 2d 132
<![CDATA[
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) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
ROB WILLIAM BORCHGREVINK, )
) Supreme Court No. S-7784
Appellant, )
) Superior Court No.
v. ) 3KN-94-691 Civil
)
KIMBERLY SUE BORCHGREVINK, ) O P I N I O N
)
Appellee. ) [No. 4842 - June 27, 1997]
______________________________)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Kenai,
Harold M. Brown, Judge.
Appearances: Peter F. Mysing, Kenai, for
Appellant. Ilona Bessenyey, Michael Gershel, and Robert K.
Hickerson, Anchorage, Alaska Legal Services Corporation, and Robin
Bronen, Anchorage, for Appellee.
Before: Compton, Chief Justice, Matthews,
Eastaugh, Fabe, and Bryner, Justices.
EASTAUGH, Justice.
MATTHEWS, Justice, dissenting.
I. INTRODUCTION
Rob Borchgrevink appeals the superior court's child
custody determination awarding legal and primary physical custody
of the parties' three children to Kimberly Borchgrevink. The case
requires us to consider the adequacy of the court's findings and
the supporting evidence. We affirm.
II. FACTS AND PROCEEDINGS
Following a three-day trial the superior court granted a
divorce to Rob Borchgrevink and Kimberly Borchgrevink and awarded
legal and primary physical custody of their three minor children to
Kimberly, subject to visitation with Rob. At the time of the
trial, the two boys were nine and six, and the girl was three.
III. DISCUSSION
Rob argues that (a) the trial court's findings concerning
the suitability of the parties' respective residences and the
nature and extent of domestic violence were clearly erroneous; (b)
the trial court abused its discretion in awarding custody to the
mother because it failed to consider all relevant statutory best
interests criteria and allowed the domestic violence factor to
outweigh all other factors; and (c) the trial court erroneously
awarded legal and physical custody of the children to Kimberly.
The superior court is vested with broad discretion in
determining child custody. Evans v. Evans, 869 P.2d 478, 479
(Alaska 1994) (citation omitted). The superior court's custody
determination will not be set aside unless the record shows that
its controlling findings of fact are clearly erroneous or the court
abused its discretion. Id. A finding of fact is clearly erroneous
only when a review of the record leaves the court with a definite
and firm conviction that the superior court has made a mistake.
Money v. Money, 852 P.2d 1158, 1161 (Alaska 1993). An abuse of
discretion has occurred if the superior 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).
A. Suitability of Residences
The trial court made the following finding regarding the
suitability of the parties' residences:
There was testimony by several witnesses that
the residences of both parties were inadequate in certain respects
and not always neat and clean, especially the home of [Kimberly].
[Kimberly] was described, even by members of her family, as being
a poor housekeeper. Nevertheless, the Court finds that the
condition of the residences of both parties do not represent a risk
to the health and welfare of the children.
Passages in the trial testimony of Rob Borchgrevink, Susan Moore
(Kimberly's aunt), and Ronald Sliger (Rob's stepfather) supported
this finding. The trial court did not clearly err in making this
finding.
B. Domestic Violence
The trial court made the following finding:
There was testimony by [Rob] that [Kimberly]
verbally abused [Rob] but the evidence from [Kimberly] and other
witnesses supports the finding that [Rob], commencing early in the
marriage and up to the time of separation, engaged in a systematic
course of conduct, resulting in the intimidation of [Kimberly]
through coercion and threats and most significantly, physical
abuse.
Rob argues that this finding was also clearly erroneous.
Having reviewed the record evidence, we conclude that the
trial court did not clearly err. There was substantial evidence of
domestic violence, and the trial court was in the best position to
assess the credibility of Rob, Kimberly, and other witnesses. See
Alaska R. Civ. P. 52(a) ("Findings of fact shall not be set aside
unless clearly erroneous, and due regard shall be given to the
opportunity of the trial court to judge the credibility of the
witnesses.").
Although it was not necessary that Kimberly's testimony
be corroborated, the record does contain evidence, including that
of Susan Moore, and Tina Kivi, Kimberly's best friend, which
corroborates aspects of Kimberly's testimony concerning domestic
violence.
The court also found that Rob "continues, even after
separation, to engage in 'controlling activities.'" Rob argues
that this finding was also clearly erroneous. The record contains
substantial evidence that Rob engaged in post-separation
controlling activities.
C. Sufficiency of Superior Court's Findings and Conclusions
The trial court made the following findings of fact and
conclusions of law relevant to the custody determination [Fn. 1]:
FINDINGS OF FACTS
. . . .
9. By far the most significant issue
concerned the legal and physical custody of the three children of
the parties. Following the separation of the parties Kimberly
sought and received a domestic violence restraining order which was
subsequently modified on several occasions resulting eventually in
each party being awarded interim custody of the children on
alternating weeks. A custody investigator appointed by the Court
filed a report which, amongst other things, recommended that this
custody arrangement be kept in place unless ". . . at a future date
it is determined through counseling or some other neutral means
that the children are being negatively impacted by the week on/week
off schedule"other recommendations included:
a. The children be assessed for
counseling needs. In the event it is determined that the children
are in need of counseling, neither parent will participate in or
interfere in that counseling unless invited to do so by the
therapist.
b. Kimberly and Rob Borchgrevink be
required to enroll in and successfully complete a six to eight week
parenting class within three months of any final ruling in this
matter.
c. Neither parent is to disparage the
other in front of the children.
d. In the event either parent requires
babysitting services for more than a four hour period, the other
will be given first option to care for the children.
e. Both parents will keep the other
fully informed of the children's ongoing medical and educational
needs.
f. If either parent is cited for being
under the influence of alcohol and/or drugs while transporting the
children, that parent should be required to undergo random
urinalysis testing three times per month for a period of four
months. They should additionally be required to be assessed for
substance abuse issues and required to follow any recommendations
forthcoming from such an assessment.
g. Neither parent or their partners or
relatives will use corporal punishment on the children.
10. Substantial domestic violence
occurred during the marriage of the parties. The marriage was
strained from the beginning. Kimberly testified that she was
prohibited from doing many things, such as developing relationships
outside the home, visiting her brother in his house, or engaging in
other activities without prior permission from Rob. Verbal abuse
from Rob started in approximately 1987 and escalated thereafter to
hitting and other forms of physical abuse, such as punching in the
face, vehicular assault, kicking, slapping, and, at least on one
occasion, by dragging Kimberly by the hair through the trailer park
where the parties were at one time residing. There was testimony
by Rob that Kimberly verbally abused Rob but the evidence from
Kimberly and other witnesses supports the finding that Rob,
commencing early in the marriage and up to the time of separation,
engaged in a systematic course of conduct, resulting in the
intimidation of Kimberly through coercion and threats and most
significantly, physical abuse. The effect of this type of behavior
upon a typical "victim"was particularly well described by JoAnne
Johnston in her testimony and by reference to the behavior and its
consequences reflected in Kimberly's exhibit 19, the power and
control wheel. Rob continues, even after separation, to engage in
"controlling activities." For example, Rob refused to communicate
directly with Kimberly unless his attorney was present and insisted
that all information concerning the children's progress while they
were attending daycare during his week of custody be communicated
only to Rob. Rob claims that his refusal to meet with Kimberly
without a third party present was to eliminate the opportunity for
Kimberly to make unsubstantiated claims of domestic violence.
While this may be, at first glance, a reasonable concern the Court
finds that the threat of such an occurrence is far out weighed by
the benefits to be derived in the establishment of communication on
a one to one basis between the parties concerning the children.
11. Unfortunately, much of the
assaultive behavior, including verbal abuse, was witnessed by the
children, especially the two older boys. It most often occurred
when Rob was drinking and on those occasions, the children would
remove themselves from the vicinity of their father and hide as
best they could from his anger. Although the assaultive behavior
of Rob ceased after separation the domestic violence as that term
is understood in the broadest sense continued in various subtle
ways, examples of which are reflected above. The domestic violence
witnessed by the children has resulted in the older [boys']
identification with Rob who is perceived as the "power"parent.
For this reason, expressions of preference by the two boys (even
aside from the issue of their tender age) to Dr. Dinius, the
parents of Rob, Rob, Rob's sister, or Lisa Turner, are of little
assistance to the Court in determining legal and physical custody.
12. There was testimony by several
witnesses that the residences of both parties were inadequate in
certain respects and not always neat and clean, especially the home
of Kimberly. Kimberly was described, even by members of her
family, as being a poor housekeeper. Nevertheless, the Court finds
that the condition of the residences of both parties do not
represent a risk to the health and welfare of the children.
13. Both parents were, at the time of
separation, in need of developing enhanced parenting skills. Rob
was in need in developing anger management skills. Both parties
have worked hard since separation to enhance their parenting skills
and Rob, since his arrest in Wrangell, for assaulting Kimberly has
attended and successfully completed an anger management program.
Both parties have made substantial progress in these areas. Still
Rob minimizes the nature and extent of his involvement in domestic
violence and has exhibited little "self realization"of the effect
of this behavior on Kimberly and his children. One consequence of
this minimization manifests itself in Rob's failure to take
responsibility for his past action and recognition of those changes
necessary in his conduct to the establishment of a relationship
with Kimberly that allows her to meaningfully contribute to those
day to day decisions necessary to the welfare of the children as
she is fully capable of doing, if permitted by Rob, assuming Rob
was awarded legal and physical custody of the children. On the
other hand, Kimberly must learn to minimize involvement of the
children in the dispute between [her] and Rob. Both parties have
disparaged the other in front of the children. Both parties
testified and the Court agrees that the children have been
negatively impacted by the week on/week off schedule.
14. As both parties apparently agree, it
is in the best interest of the children that one parent have legal
and physical custody of the children subject to liberal visitation
rights in the non-custodial parent. Rob would be willing to
preserve the "status quo"if he were not to be awarded legal and
physical custody of the children. On the other hand Kimberly was
willing to sacrifice her status as a parent having joint legal and
physical custody in favor of legal and physical custody in a single
parent even if it meant that legal and physical custody was awarded
to Rob because she believes, and the Court agrees, legal and
physical custody in one parent is necessary to the creation of a
stable environment for the children under the circumstances and
would be in their best interests. Neither party has suggested that
separating the children would be appropriate.
15. The maintenance of a relationship
between the Grandparents of the children, especially the Mother and
Step-Father of Rob (and other members of the extended family of
both parties) is important to the well being of the children and is
in their best interest that the Grandparents be given ample
opportunity for visitation.
16. Kimberly is unemployed and without
the resources necessary at this time to contribute meaningfully to
the support of the children or to pay for the evaluation and
counseling, if necessary, of the children. Rob is employed at
Dukowitz Machine as a roustabout with a net income of approximately
$1,600 a month.
. . . .
CONCLUSIONS OF LAW
. . . .
4. Legal and primary physical custody
of the three minor children of the parties is awarded to Kimberly,
subject however to liberal rights of visitation with Rob and Rob's
parents which contemplates two weekends per month, unless otherwise
agreed, commencing at 6:00 p.m. on Friday evening and ending at
7:00 p.m. on Sunday evening and two months for all three children
during each summer. Rob will be responsible for picking up and
dropping off the children for each period of visitation. Rob will
be entitled to custody of the children on alternating Thanksgiving
and Christmas holidays and during each Spring vacation. Kimberly
will be entitled to custody for the Thanksgiving holiday in 1996.
Rob will be entitled to custody during the Christmas holiday in
1996.
5. Recommendations "a"through "e"and
"g"of the child investigator reflected in paragraph 9 of the
Findings of Fact are incorporated herein by reference and made a
part hereof.
Rob argues that undue weight was given to the domestic
violence factor, and that the findings were insufficient for
adequate appellate review.
We review alleged inadequacy of a trial court's fact
findings to determine whether they give a clear indication of the
factors considered important by the trial court or allow us to
determine from the record what considerations were involved.
Cf. Bird v. Starkey, 914 P.2d 1246, 1249 n.4 (Alaska 1996) (remanding
for specific findings where the court ordered that the parties'
child attend a particular elementary school "without any
explanation or findings"). Citing previous Alaska opinions, we
stated in that case that
This line of cases requires the trial court to
articulate the reasons for its holding where those reasons are not
apparent from the record. 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.
Id. at 1249 (footnotes omitted). [Fn. 2]
In the present case, the trial court discussed the
pertinent statutory factors and implicitly found that the
children's best interests required their placement with their
mother. The trial court could have explained more thoroughly the
present impact of past domestic violence and past and continued
controlling behavior on the parties' present relationships with
their children. It also could have elaborated on the effect of
this behavior on the children's best interests. We nonetheless
conclude that the trial court's findings in this regard were
adequate to reveal its reasoning process. The findings provide a
"clear indication of the factors which the superior court
considered important in exercising its discretion." Id. at 1249
n.4. Although the court did not expressly cite AS 25.24.150(c), it
addressed the statutory factors that were, in context of the record
in this case, pertinent and potentially determinative. There was
no significant dispute about most of the statutory factors, both
with respect to what the pertinent facts were, and with respect to
how those factors favored awarding custody to one parent or the
other.
Thus, there was no substantive dispute about the
physical, emotional, mental, religious, and social needs of the
children. AS 25.24.150(c)(1). This statutory factor favored
neither parent.
With respect to the capability and desire of the parents
to meet the children's needs, see AS 25.24.150(c)(2), there was no
evidence either parent was significantly superior to the other;
each had different strengths and there was evidence each was
genuinely trying to deal with the children's needs, particularly
those of the youngest boy. This evidence was largely in balance.
The court expressly recognized that both parties had "worked hard
since separation to enhance their parenting skills . . . [and had]
made substantial progress."
There was a dispute about whether a given child might
favor placement with a particular parent. A child's preference is
a statutory factor "if the child is of sufficient age and capacity
to form a preference." AS 25.24.150(c)(3). The oldest child,
however, was only nine years of age, and the court discounted any
expressions of preference as being of "little assistance"in
determining custody. The court thus expressly considered the
preference factor and decided, for reasons that were not clearly
erroneous, not to rely on that factor.
The love and affection existing between the children and
each parent is also a statutory factor. AS 25.24.150(c)(4). The
court did not discuss that factor, but it was undisputed that this
factor favored neither party. Rob's attorney asserted in final
argument: "I don't think that either party has ever said that the
other parent did not love these children, and it has certainly
never been our position that Kimberly did not love her children or
that they did not love her . . . ." There was no need to address
this factor because it was neutral.
The length of time the children had lived in a stable,
satisfactory environment, and the need for continuity, is also a
statutory factor. AS 25.24.150(c)(5). Both parents wanted to end
the week on/week off custody schedule followed for the prior two
years. The court expressly found that "legal and physical custody
in one parent is necessary to the creation of a stable environment
for the children under the circumstances and would be in their best
interests." The court determined that the status quo had
"negatively impacted"the children. The court adequately addressed
the stability and continuity factor.
There was some inconclusive evidence regarding possible
substance abuse by each parent, but that evidence did not clearly
favor Rob. This evidence was sufficiently inconclusive that there
was no reason for the court to address this statutory factor. AS
25.24.150(c)(8).
Thus, some of the statutory factors were expressly
addressed by the trial court and others were not in genuine dispute
and did not favor Rob. The trial court expressly addressed the two
remaining statutory factors.
The first relates to the desire and ability of each
parent to allow an open and loving frequent relationship between
the children and the other parent. AS 25.24.150(c)(6). The last
four sentences of Finding 13 address this factor generally. The
court noted that Rob has failed to make changes in his conduct
necessary "to the establishment of a relationship with [Kimberly]
that allows her to meaningfully contribute to those day to day
decisions necessary to the welfare of the children as she is fully
capable of doing, if permitted by [Rob], assuming [Rob] was awarded
legal and physical custody of the children." This finding clearly
disfavors Rob. The court then noted deficiencies in Kimberly's
conduct and found that both parties had disparaged the other in
front of the children. The court elsewhere discussed Rob's refusal
to communicate with Kimberly, a finding that disfavored Rob on this
factor. These findings reflect adequate consideration of this
factor.
The trial court placed heavy emphasis on the remaining
statutory factor: "any evidence of domestic violence, child abuse,
or child neglect in the proposed custodial household or a history
of violence between the parents." AS 25.24.150(c)(7). There was
no genuine dispute that Rob had physically abused Kimberly prior to
separation, although there was a dispute about the number of
incidents and Rob's willingness to admit the extent of that abuse.
In considering this statutory factor, the court declined to define
domestic violence narrowly. It found that
Although the assaultive behavior of [Rob]
ceased after separation the domestic violence as that term is
understood in the broadest sense continued in various subtle ways,
examples of which are reflected above. The domestic violence
witnessed by the children has resulted in the older [boys']
identification with [Rob] who is perceived as the "power"parent.
The court elsewhere observed that Rob "continues, even after
separation, to engage in 'controlling activities.'" The court
approvingly referred to trial evidence of a "power and control
wheel,"and appears to have accepted opinion evidence offered by an
expert in domestic violence that controlling behavior can
constitute domestic violence.
The dissent accurately identifies four purposes served by
the requirement that trial courts make findings in judge-tried
cases, and concluded that three are relevant to this case. Dissent
at 23-24. The dissent concludes that the findings are inadequate
and would vacate the judgment and remand for additional fact
finding.
In our view, the trial court's findings satisfied the
purposes noted by the dissent. First, the findings are
sufficiently extensive that it appears they "aid[ed] the trial
judge's analytical process." Matter of D.C., 715 P.2d 1, 1 (Alaska
1986); Dissent at 23-24. Although the findings could have been
more explicit, the court conducted the necessary analysis in
determining the best interests of the children. That analysis led
the trial court to focus on the domestic violence factor which was
the most contentious trial issue and the factor the court felt was
critical. The parties' trial briefs focused upon the child custody
factors listed in AS 25.24.150(c), and set the context for the
trial court's analysis and determination. At the outset of his
direct examination Rob's lawyer took Rob through each of the
statutory criteria. Likewise, the parties' final arguments
centered on the statutory factors and the children's best
interests. In this context, the findings reveal that the court was
analyzing the pertinent statutory factors.
The trial court's findings were also sufficient to
satisfy the second purpose identified by the dissent -- to aid
appellate review. Dissent at 24. A trial court's factual 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. Bird, 914 P.2d at 1249 n.4; see also
Duffus v. Duffus, 932 P.2d 777, 779 (Alaska 1997) ("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 findings also were adequate to satisfy the third
purpose identified by the dissent -- enabling "the defeated party
to determine whether the case presents a question worthy of
consideration by the appellate court." Dissent at 24. Rob argues
that the trial court's findings make it impossible to determine the
basis of that court's decision. Nevertheless, Rob appealed from
the superior court's determination, and focused his briefing on the
trial court's findings bearing on whether Rob's controlling
behavior and past domestic violence would have a continuing adverse
effect on the children's best interests. Those were the issues in
dispute, and the trial court made findings on them. The trial
court's findings did not prevent Rob from deciding whether to
appeal. Nor did they prevent him from substantively addressing the
domestic violence issue and arguing that the findings were neither
supported by evidence nor indicative of his present fitness to be
the custodian.
We prefer that superior courts specifically address the
statutory factors detailed in AS 25.24.150(c), and make explicit
"ultimate"findings that the best interests of the children require
the custodial disposition reached. Detailed findings clearly
advance the purposes identified by the dissent. Moreover, they
reduce or avoid appellate attacks on any perceived insufficiency of
the findings, and allow us to focus on more substantive issues.
Nevertheless, the findings here were not so inadequate that they
require that the judgment be vacated and the case remanded.
Having considered the sufficiency of the findings, we
turn to Rob's assertion that the findings were not supported by the
evidence. We conclude that the record supports those findings,
including those which the trial court considered dispositive of the
custody issue. The record clearly establishes that Rob engaged in
domestic violence before the parties separated by physically
abusing and threatening Kimberly on a number of occasions. Indeed,
Rob does not dispute that he physically abused Kimberly before they
separated, even though the parties disagree about the extent of
that abuse. Although it is undisputed that the physical abuse
ended after Rob and Kimberly separated, there was evidence that
domestic violence is not limited to physical assault. JoAnne
Johnston, qualified by the court as an expert in domestic violence,
testified that it is a common misconception that "domestic violence
is an issue of anger." She also testified "that domestic violence
is when a person uses any tool available to take away the freedom
of another person, not just anger. In fact it may be being very
nice, but the purpose or the motivation is centered around power
and control as opposed to anger." Ms. Johnston testified that
children are affected by the exercise of power and control and
abusive behaviors because they may connect themselves with the
person who has the power.
Kids are fearful, and so they respond and try
and attach with the person with whom there's a sense of needing to
feel safe. Well, if they bond or show themselves to be most
attached to the person who's using power and control and abusive
behaviors, they then perceive oftentimes that they can be safe,
because they're connected with the person who has all the power.
She testified that the anger management program Rob enrolled in may
only have focused upon controlling his anger. Nevertheless, she
stated that "if we . . . [do] not identify other forms of abuse
[such as the abuse of power and control], but just the abuse of
anger, then we've not addressed the overall issue." There was also
evidence that the children's behavior had worsened since
separation, and that the older boy had become more disrepectful of
Kimberly. Witnesses testified that after separation the children
had failed to respect Kimberly's authority as a parent on occasion.
There was evidence that Rob had engaged in controlling behavior
after separation. Rob denied to a counselor that he had engaged in
controlling behavior, but asserted that Kimberly had been
controlling in a number of areas. It appeared to Ms. Johnston that
Rob had minimized his own fault and responsibility. The record
supports the finding that Rob continues to minimize the extent and
nature of his behavior; the trial court could have readily
discounted or rejected his testimony minimizing his domestic
violence.
Although the children had not witnessed any physical
violence between Rob and Kimberly since their parents separated,
the deleterious impact on children of witnessing domestic violence
is widely recognized. See, e.g., Custody of Vaughn, 664 N.E.2d
434, 439 (Mass. 1996) ("It is well documented that witnessing
domestic violence . . . has a profound impact on children. There
are significant reported psychological problems in children who
witness domestic violence, especially during important
developmental stages.") (citations omitted). Furthermore, social
science studies have noted that even if the physical violence
between the parties has ceased, the abusive ex-spouse may continue
to engage in controlling behaviors that adversely affect the
children. In one such study, researchers found:
Perpetrators of . . . [ongoing or episodic]
domestic violence tend to have a very poor ability to differentiate
their needs from those of their children, or to appreciate the
impact of their violent behavior upon their children. Because of
their need to control others, their low stress tolerance and
willingness to rely upon physical coercion, these perpetrators are
at elevated risk of eventually generalizing their violence and
control to their children. Following a separation, they are at
elevated risk of using the children to validate their own view of
the separated partner and the relationship, or using the children
as a method of exerting control over or punishing the separated
partner.
Phyllis E. Federico & Dr. Robert Kinscherff, Custody of Vaughn:
Impact of Domestic Violence on Child Custody: Children Are No
Longer the Forgotten Victims, 40 Boston B.J. 8, 22 (1996). The
trial court did not impermissibly punish Rob for past domestic
violence, but appropriately considered Rob's proven past domestic
violence and his current behavior in the context of the present
impact on the children and their relationships with their parents.
We consequently hold that the evidence supported the
trial court's critical findings on the custody issue.
The dissent suggests that we are effectively changing the
standard of review from one which asks whether the findings made
are supported by the evidence to one which asks whether any
evidence supports the judgment. Dissent at 28. We disclaim any
change in the standard of review. The superior court addressed the
pertinent statutory factors in its findings. The court did not
expressly find that it was in the children's best interests to be
placed with Kimberly, but given that the court addressed each
pertinent statutory factor, and that the parties had briefed and
argued the statutory factors and the best interests analysis, we
have no difficulty in ascertaining how the court resolved the
custody issue and the precise reasons for that resolution. We have
determined there was ample evidence in the record supporting those
findings; although the evidence was in dispute, it was sufficient
to justify the findings the trial court made on all of the disputed
factors, including the two factors which the trial court finally
determined were dispositive. We have not applied a new standard of
review.
D. Weight of Evidence
Rob claims finally that the child custody award is
contrary to the weight of the evidence at trial. Rob's
interpretation of the evidence in light of the statutory factors is
not supported by the record. Our review reveals that the statutory
factors did not require a result other than the one reached by the
trial court.
The trial court did not place undue weight on the
domestic violence factor; it was this factor that most strongly
weighed in favor of one parent and against the other, and the trial
court did not inappropriately weigh that factor in comparison with
other circumstances, which were largely in balance. See McQuade v.
McQuade, 901 P.2d 421, 425 (Alaska 1995) (holding that the superior
court did not abuse its discretion in concluding that, all else
being equal, sibling bonds were the deciding factor in awarding
custody to the mother). It is apparent from the trial court's
findings that Rob's behavior and domestic violence were the
controlling factors in the custody determination.
IV. CONCLUSION
Because we conclude that the controlling factual findings
are not clearly erroneous and because the record does not reveal an
abuse of discretion, cf. Vachon v. Pugliese, 931 P.2d 371, 375
(Alaska 1996) (noting that we will only reverse a trial court's
resolution of custody issues where we are convinced that the trial
court abused its discretion or if factual findings are clearly
erroneous), we AFFIRM. [Fn. 3]MATTHEWS, Justice, dissenting.
In cases tried to the court without a jury, the court is
required to "find the facts specially and state separately its
conclusions of law thereon." Alaska R. Civ. P. 52(a). Child
custody questions are to be determined "in accordance with the best
interests of the child . . . ."[Fn. 1] What the best interests of
the children require is thus the ultimate finding to be made by a
trial court in a child custody case. In reaching the ultimate
finding, the trial court must consider a number of statutorily
mandated factors, and findings concerning relevant statutory
factors must be made. Finally, findings relating the relevant
statutory factors to the court's ultimate best interests finding
should be made. Such findings integrate the relevant statutory
factors into the court's best interests determination and explain
why the court has decided that the best interests of the children
are served by the custody determination which it has made.
In the present case, the trial court did not make an
ultimate finding that it is in the best interests of the children
that Kimberly be their primary custodian rather than Rob, and did
not make integrative findings explaining how the relevant statutory
factors would justify a determination that it is in the best
interests of the children to be in the primary custody of Kimberly.
We have identified a number of purposes served by the
requirement that trial courts make findings in judge-tried cases.
This requirement (1) "aids the trial judge's analytical process";
(2) "may be relevant for collateral estoppel purposes"; (3) "aids
the appellate court on review"; and (4) enables "the defeated party
to determine whether the case presents a question worthy of
consideration by the appellate court."[Fn. 2] Of these, the
first, third and fourth purposes are relevant here, and more should
be said about them.
Written findings demonstrate that the trial court has
asked and answered the questions that the law requires be asked and
answered. In this way the findings facilitate appellate review.
The absence of required findings indicates that the trial court has
made a mistake of some sort. Required findings on a statutory
standard such as children's best interests may not have been made
because the trial court may not have realized that the standard
controlled the decision, or required findings may not have been
made through oversight on the part of the trial court. It is also
possible that required findings were made by the trial court
mentally, but were not set down in writing.
Written findings also help the trial judge to reach an
appropriate decision. They require that the controlling question
be explicitly asked and answered and thus exert a discipline which
should help to ensure that the decision is both logical and in
compliance with legal requirements. This value exists independent
of appellate review.
Finally, dispensing with the findings requirement
necessarily changes the standard of review. Findings are reviewed
for factual sufficiency -- that is they are not to be overturned on
appeal unless they are clearly erroneous. Alaska R. Civ. P. 52(a).
Obviously, findings which are not made cannot be reviewed under
this or any other standard. Judgments without findings -- assuming
they are to be reviewed rather than remanded for findings -- can be
reviewed. Judgments on the general verdict of a jury are examples.
Such judgments are upheld if they are supportable under any set of
facts in evidence. Note the difference between this standard and
the standard applicable to findings made by a trial judge. In the
judge-tried case it is for the trial judge to select among disputed
facts. On appeal, only those disputed facts found by the trial
judge are tested for factual sufficiency. In a jury trial, on the
other hand, all the evidence must be reviewed to see if there is
any evidentiary support for the judgment. The assumption of the
appellate court is that all disputes concerning the facts have been
resolved by the jury in a way which supports the judgment. This
may not be what the jury actually did, but it is a necessary
assumption given the impenetrability of jury deliberations. In a
judge-tried case this assumption is not necessary, for the trial
court's findings should set out what has been found and what has
been relied on. Using the assumption assigns the fact-finding
responsibility of the trial court to the appellate court. In other
words, the role of the appellate court in the judge-tried case is
to review only what the trial court has found, not what the trial
court might have found. Similarly, the appellant's burden in the
judge-tried case is to show that what was found was clearly
erroneous, not that the judgment was unsupportable under any
possible set of findings that might have been made.
Turning to this case, there is no demonstration that the
trial court addressed the question as to whether the children's
best interests would be better served by having Kimberly rather
than Rob as primary custodian. Based on the set of findings that
we have before us we can only speculate as to whether the trial
court actually decided this question. [Fn. 3] Similarly, requiring
the trial court to make findings as to the connection, if any,
between Rob's past physical abuse of Kimberly, and the best
interests of the children, would also focus the attention of the
trial court on this critical question. [Fn. 4] Again, we can only
speculate as to whether the trial court mentally made a finding on
this question, and, if so, as to what it was.
Although no witness testified that the children's
interest will be better served in the primary custody of Kimberly
rather than Rob because of Rob's past domestic violence and
controlling behavior, I assume that the trial court could have made
such a finding based on a chain of inferences drawn from evidence
which was partly disputed. Should the trial court then be affirmed
on the basis of a finding which it might have made, but did not?
In my view, the answer is no. Doing so is to use the jury trial
standard of review -- the appellate court affirms because there is
evidence supporting the judgment. As noted, this effectively takes
from the trial court the responsibility of selecting from among
competing sets of facts which are supportable based on the
evidence.
This court has previously reversed and remanded for
further findings cases where trial courts have not made ultimate
findings, [Fn. 5] and cases where trial courts have not made
integrative findings. [Fn. 6] Here the trial court made neither
ultimate findings nor integrative findings.
These failures cast doubt as to whether the court focused
on the best interests of the children in awarding custody to the
mother rather than the father, for if the court had decided this
question it is reasonable to suppose that findings addressing it
would have been made. Further, the lack of integrative findings
leads one to wonder whether the court thought that it was
sufficient merely to identify the more virtuous of the parents in
an abstract sense, rather than to decide which parent would be the
better custodian. On review we can only speculate as to whether
the trial court made the findings which the law requires.
Finally, insofar as today's opinion has inferred
integrative findings based on the conclusion reached by the trial
court, the opinion has effectively changed the standard of review
from one which asks whether findings which have been made are
supported by the evidence to one which asks whether there is any
evidence which can support the judgment. This change bypasses the
fact selection role of the trial court.
For these reasons I would vacate the judgment and remand
this case for further findings.
FOOTNOTES
Footnote 1:
The parties' names have been substituted for "plaintiff" and
"defendant."
Footnote 2:
In Bird we explained:
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).
Bird v. Starkey, 914 P.2d 1246, 1249 n.4 (Alaska 1996).
Footnote 3:
Rob argues only that legal and primary physical custody should
have been awarded to him; he does not claim that the trial court
should have given him greater visitation privileges with the
children.
FOOTNOTES (Dissent)
Footnote 1:
AS 25.24.150(c) and (d) provide:
(c) The court shall determine custody in accordance with the best
interests of the child under AS 25.20.060 - 25.20.130. 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.
(d) In awarding custody the court may consider only those
facts that directly affect the well-being of the child.
Footnote 2:
The first three purposes are taken from Matter of D.C., 715 P.2d 1 (Alaska 1986), based on
Merrill v. Merrill, 368 P.2d 546 (Alaska 1962). The fourth factor was identified in Rogge v. Weaver,
368 P.2d 810, 814 n.7 (Alaska 1962).
Footnote 3:
It is, of course, possible to say that the court implicitly found that it was in the best interests
of the children to be in the primary custody of the mother because the court concluded that the
mother should be the primary custodian. The reasoning underlying such an implication is that since
the legal conclusion -- that the mother be primary custodian -- is dependent on an ultimate finding --
that it is in the best interests of the children that the mother be primary custodian -- it follows that the
ultimate finding was made, otherwise the trial court erred. However, this type of implication, based
on the presumption of judicial regularity, subverts the findings requirement by assuming rather than
requiring compliance with the findings rule.
Footnote 4:
In defense of the trial court I should say that the trial court's failure to draw a connection
between the father's prior history of domestic violence and the best interests question mirrored the
evidence, which also contained no clear connection in this respect. The only expert who testified to
what the future custodial arrangement should be was the state custody investigator who explained
her report which recommended that the parties' present alternating week custody arrangement be
continued. This arrangement had been in effect for two years, as of the time of trial, without violent
incidents.
Footnote 5:
See, e.g., Hakas v. Bergenthal, 843 P.2d 642, 643-44 (Alaska 1992); Matter of D.C., 715
P.2d 1, 1 (Alaska 1986).
Footnote 6:
See, e.g., Bird v. Starkey, 914 P.2d 1246, 1248-49 (Alaska 1996)(reversal for failure to make
findings as to why attendance at a particular school in child's best interests); Lowdermilk v.
Lowdermilk, 825 P.2d 874, 879 (Alaska 1992)(trial court abused its discretion in failing to make
findings regarding a statutorily mandated factor at issue in the case; to make findings regarding the
effect of that factor on the parties; and to make findings regarding that factor's bearing on the
ultimate issue in the case); Morel v. Morel, 647 P.2d 605, 607-08 (Alaska 1982) (reversal for failure
to apply facts of case to statutory factors and make findings regarding the application of those facts).
]]>
