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West v. Lawson (1/16/98), 951 P 2d 1200
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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
DEBORAH M. WEST, )
) Supreme Court No. S-8083
Appellant, )
) Superior Court No.
v. ) 3AN-95-5384 CI
)
MARK E. LAWSON, ) O P I N I O N
)
Appellee. ) [No. 4935 - January 16, 1998]
______________________________)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Karen L. Hunt, Judge.
Appearances: Vincent Vitale, Anchorage, for
Appellant. Mark E. Lawson, pro se, Las Vegas, Nevada, Appellee.
Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.
FABE, Justice.
I. INTRODUCTION
This appeal involves a dispute between Deborah West and
Mark Lawson over the custody of their three-year-old daughter,
Shelby. West and Lawson entered into a custody agreement under
which Shelby was to live with each parent fifty percent of the
time. Lawson then moved to Las Vegas, Nevada. Following a
modification hearing, the superior court imposed a custody schedule
under which Shelby would spend alternate six-month periods with
West in Anchorage and with Lawson in Las Vegas until she reached
school age. We vacate the six-month alternating custody schedule
and remand for further proceedings.
II. FACTS AND PROCEEDINGS
West and Lawson met in November 1992 and began dating
several months later. They lived together briefly, but were no
longer living together when Shelby was born in January 1994. The
parties were never married and have no other children. [Fn. 1]
Shelby was diagnosed with mild cerebral palsy in 1995.
After Shelby's birth, the parties attempted
reconciliation and Shelby lived with both parties in Lawson's
mother's Anchorage apartment until October 1994 when West moved
out. Shelby then lived with Lawson for five days each week in his
mother's apartment and with West for two days each week during
West's days off from work. West visited Shelby regularly at
Lawson's mother's apartment. [Fn. 2]
In June 1995 West filed a complaint for custody. Lawson
filed an answer and counterclaim seeking sole custody. In February
1996 West and Lawson entered into a custody agreement under which
Shelby was to live with each parent fifty percent of the time.
Although the agreement did not establish a specific visitation
schedule for Shelby's preschool years, Shelby lived approximately
half of the week with each parent from February 1996 to November
1996. The agreement specified that once Shelby began kindergarten
she would live with each parent on an alternating week basis.
In November 1996 Lawson and his wife moved to Las Vegas
in pursuit of employment opportunities. Recognizing that his move
would make it impossible to continue the alternating half-week
custody schedule, Lawson moved for an alternating six-month custody
schedule. The motion was denied. West moved for a determination
of whether Lawson's move warranted modification of the custody
agreement. The motion was granted.
A modification hearing was held in March 1997. The court
heard testimony from several witnesses including both parties, the
child custody investigator, Allen Bailey, and a psychologist, Dr.
Karen Henderson-Dixon, called by West as an expert witness. Bailey
recommended that West have primary physical custody and that Lawson
have visitation rights. Dr. Henderson-Dixon wrote a report and
testified about the detrimental effects of an alternating six-month
custody schedule on a child Shelby's age. She recommended against
such a schedule, but because she had not met with Shelby or her
parents and was unfamiliar with details of the case, she expressed
no opinion regarding which party should be granted custody.
Despite these recommendations, the court explained that
it "weigh[ed] pretty heavily the negotiated agreement"between the
parties, and that it "[found] nothing in this record that does not
suggest that the carefully formulated agreement that the parties
arrived at regarding custody in this case is not in the best
interests of this child." The court adopted the custody
agreement's stipulation that Shelby live with each parent fifty
percent of the time. It modified this provision by imposing an
alternating six-month custody schedule. Neither at the hearing nor
in its final custody order did the court indicate what the custody
schedule would be when Shelby begins kindergarten.
The custody agreement also provided that Lawson would
make payments into a joint bank account to repay West for Social
Security benefits he had received on Shelby's behalf. The
agreement further provided that Lawson's failure to make the
payments would entitle West to obtain judgment for the balance then
outstanding, attorney's fees, and prejudgment and postjudgment
interest. Although Lawson failed to make the payments, the court's
final order required Lawson to repay only the balance then
outstanding and postjudgment interest.
West appeals the lower court's imposition of the
alternating six-month custody schedule and the court's failure to
award attorney's fees associated with obtaining judgment for the
outstanding balance and prejudgment interest.
III. DISCUSSION
A. Standard of Review
Modifications of custody decisions are reviewed for abuse
of discretion. See Kessler v. Kessler, 827 P.2d 1119, 1119 (Alaska
1992). Abuse of discretion may be established when "in reaching
its decision, the trial court considers improper factors, fails to
consider statutorily mandated factors, or gives too much weight to
some factors." Id. "In the context of a custody modification
decree, this analysis must be applied to assess whether the
superior court was justified in changing the previous custody
determination." Gratrix v. Gratrix, 652 P.2d 76, 80 (Alaska 1982).
A trial court's factual findings are reversed only if they are
clearly erroneous. See Horutz v. Horutz, 560 P.2d 397, 399 (Alaska
1977). "A finding is clearly erroneous if it leaves this court
with 'a definite and firm conviction on the entire record that a
mistake has been made.'" City of Hydaburg v. Hydaburg Co-op Ass'n,
858 P.2d 1131, 1135 (Alaska 1993) (quoting Parker v. Northern
Mixing Co., 756 P.2d 881, 891 n.23 (Alaska 1988)).
B. The Custody Schedule
A child custody or visitation award "may be modified if
the court determines that a change in circumstances requires the
modification of the award and the modification is in the best
interests of the child." AS 25.20.110(a); see also A.H. v. W.P.,
896 P.2d 240, 244 (Alaska 1995). When a court determines the best
interests of a child in the context of changed circumstances, "the
scope of judicial inquiry is limited to facts directly affecting
the child's well-being." S.N.E. v. R.L.B., 699 P.2d 875, 878
(Alaska 1985) (citing AS 25.24.150(d)).
Because Lawson's move to Las Vegas constituted a change
of circumstances, the superior court's analysis at the hearing
should have focused on whether alternating custody would be in
Shelby's best interests in light of the changed circumstances. See
House v. House, 779 P.2d 1204, 1207-08 (Alaska 1989). However, the
record indicates that in determining Shelby's best interests, the
court placed undue weight on the existing custody agreement.
Although the court did consider the best interests of the child,
its findings suggest that its modification determination was
substantially influenced by the agreement's provision that the
parties share physical custody equally.
Reliance on the agreement was unwarranted because the
visitation provision, which established that physical custody would
be shared equally, was based on the assumption that both parties
would live in Anchorage. [Fn. 3] Moreover, the evidence in this
case does not support a conclusion that the alternating six-month
custody schedule is in Shelby's best interests.
We addressed the issue of an alternating six-month
custody schedule where one parent intended to live outside of
Alaska in Kelly v. Kelly, 926 P.2d 1168 (Alaska 1996). We observed
that divided physical custody cases typically involve parents who
reside in the same community, and that awards of divided physical
custody where parents live in different parts of the country "may
foreclose 'a stable environment and the development of permanent
associations. . . .'" Id. at 1169 (quoting John P. McCahey et al.,
2 Child Custody and Visitation Law and Practice sec. 13.04(2)
(1993)).
Although we considered the case close, we upheld the alternating
six-month schedule because "[n]o evidence was presented that the
arrangement was likely to prove harmful to [the child]." Id. [Fn.
4]
In this case, by contrast, evidence was presented that
an alternating six-month custody schedule is likely to prove
harmful to a three-year-old child such as Shelby. Most notably,
Dr. Henderson-Dixon submitted a report in which she traced the
three stages of a preschool child's emotional and psychological
development and highlighted the critical nature of "stability and
consistency of caregiver and surroundings"for a three- or four-
year-old child. [Fn. 5] She explained that "[i]t is not in a
preschool child's best interest to have major environmental
change,"and that while a preschool child ideally needs to be
emotionally connected to both parents, she "primarily needs a
consistent and stable environment with one parent and frequent
contact with the other." She further emphasized the detrimental
effects of an alternating six-month custody schedule:
While a 6 month on/6 month off visitation
schedule may be doable for parents, it does not satisfy the
emotional needs of the preschool child and is, in fact, destructive
to the child.
In her testimony at the modification hearing, Dr.
Henderson-Dixon stressed that an alternating six-month custody
schedule "is a very bad arrangement"and would be "debilitating"to
a child Shelby's age, and that "for a child that age, they are
severely handicapped in their development and it will affect them
for the rest of their lives." In a memorandum to the lower court,
West also presented evidence about the harmful effects of an
alternating six-month custody schedule, citing literature from the
field of child psychology that cautions against extended visits
away from home for three-year-olds. [Fn. 6]
The evidence presented by West is consistent with the
prevailing view in the field of child psychology that alternating
physical custody schedules can undermine stability in children's
lives. See McCahey, supra, sec. 13.04(2) ("Although courts have
awarded alternating custody in appropriate cases,[] divided custody
is generally disapproved."); Jeff Atkinson, 1 Modern Child Custody
Practice sec. 6.06, at 361 (1986) ("Alternating custody is
controversial because, more than other custodial arrangements, it
carries the potential for creating disruption in the child's
life."); see also Joseph Goldstein et al., Beyond the Best
Interests of the Child 32-34 (rev. ed. 1979) (emphasizing the
importance of continuity of care and stability for infants,
toddlers and young children).
In accordance with this view, a number of courts have
disfavored alternating physical custody arrangements as unduly
disruptive to a child's life. See Wilking v. Reiford, 582 So. 2d
717, 719 (Fla. Dist. Ct. App. 1991) (holding rotating custody
presumptively not in a child's best interests); Heard v. Heard, 353
N.W.2d 157, 162 (Minn. Ct. App. 1984) (holding annual rotation of
custody not in a child's best interests absent extraordinary
circumstances); Fisher v. Fisher, 535 A.2d 1163, 1166 (Pa. Super.
Ct. 1988) (holding alternating year physical custody not in a
child's best interests where parents lived in different states).
Where both parents reside in the same community, however,
we have affirmed the use of an alternating week physical custody
arrangement as a "thoughtful and sensitive approach to a difficult
problem." Deininger v. Deininger, 835 P.2d 449, 451 (Alaska 1992).
Other courts likewise approve of alternating physical custody
arrangements where parents live in the same community, and
emphasize the importance of minimizing the disruption of a child's
life. See Peyton v. Peyton, 457 So. 2d 321, 323 (La. Ct. App.
1984) (affirming alternating three-month custody schedule where
parents lived across the street from each other); In re Marriage of
Ryan, 720 P.2d 691, 693 (Mont. 1986) (affirming alternating week
custody schedule where parents lived in same community and where,
if either parent moved out of the area, parent remaining in the
area would have physical custody during the school year); Beck v.
Beck, 432 A.2d 63, 72 (N.J. 1981) (recognizing that "geographic
proximity of the two homes is an important factor"in awarding
joint physical custody); Lapp v. Lapp, 293 N.W.2d 121, 129 (N.D.
1980) (affirming alternating six-month custody schedule where the
court noted there would be "no substantial disruption"for the
child because both parents "are of close geographical proximity").
In such instances, where disruption can be minimized and continuity
of care maintained, alternating physical custody may be in a
child's best interests.
Consistent with the views of experts in the field and
other courts, we have expressed a strong preference for preserving
stability in children's lives. See, e.g., S.N.E. v. R.L.B., 699
P.2d 875, 878 (Alaska 1985) ("[W]e have repeatedly stated our
concern with maintaining continuity of care and avoiding disturbing
and upsetting the child with repeated custody changes.") (citing
Gratrix v. Gratrix, 652 P.2d 76, 81 (Alaska 1982)); Morel v. Morel,
647 P.2d 605, 608 (Alaska 1982) ("We have continually stressed the
desirability of maintaining continuity of care.").
This concern is echoed in the "[f]actors for
consideration in awarding shared child custody"contained in AS
25.20.090. In promulgating this statute, the legislature
recognized the importance of maintaining stability in a child's
life in the context of shared custody arrangements, requiring that
[i]n determining whether to award shared
custody of a child the court shall consider
. . . .
(5) the advantages of keeping the child in
the community where the child presently resides;
(6) the optimal time for the child to spend
with each parent considering
(A) the actual time spent with each
parent;
(B) the proximity of each parent to the
other and to the school in which the child is enrolled;
(C) the feasibility of travel between
the parents; . . .
AS 25.20.090.
Despite the concerns reflected in AS 25.20.090, Dr.
Henderson-Dixon's opinion that an alternating six-month custody
schedule would be "destructive"and "debilitating,"and the
prevailing view that alternating physical custody is disfavored in
cases such as this, the superior court found that an alternating
six-month custody schedule would be in Shelby's best interests.
The court concluded that Dr. Henderson-Dixon's testimony was too
general in nature to aid in the determination of Shelby's best
interests:
I have some concern about and don't find very
helpful the testimony of Dr. Henderson-Dixon,
primarily because what she gave the court was standard treatise,
textbook average child. She's never seen the child. She did not
indicate that she had looked at any medical records or anything
else about the child and I don't find her testimony to be very
helpful in trying to decide what in -- are in the best interests of
this child.
The court made no other findings about the evidence of
the potential harmful effects on Shelby of an alternating six-month
custody schedule. More particularly, the court did not point to
any evidence indicating that Shelby had less need for stability
than a "textbook average child."
Furthermore, neither the court's oral findings nor its
written custody decree addressed the factors enumerated in AS
25.20.090. First, although the court recognized the issue of
proximity, it failed to discuss it. [Fn. 7] See AS
25.20.090(6)(B). Because the proximity of each parent to the other
is at the heart of this case, such an omission is error. Second,
although the court raised the issue of travel to determine how to
distribute travel expenses between the parties, it failed to
consider the feasibility of travel. See AS 25.20.090(6)(C).
Finally, the court failed to address any advantages of keeping
Shelby in Anchorage, the community in which she resided at the time
of the hearing. See AS 25.20.090(5).
We conclude that the superior court erred by giving undue
weight to the custody agreement, failing to give adequate weight to
the evidence presented by West, and failing to consider the
relevant factors in AS 25.20.090. Where one parent has moved to a
distant locale, we hold that a six-month alternating physical
custody arrangement disrupts the stability of a young child's life
and thus is not in the child's best interests absent compelling
evidence to the contrary. In this case, the record indicates that
no such compelling evidence exists.
C. Attorney's Fees
West argues that she is entitled to attorney's fees and
prejudgment interest associated with her enforcement of a financial
provision of the custody agreement. Lawson fails to address the
issue.
The custody agreement provided that Lawson would make
payments into a joint bank account as a means of reimbursing West
for one-half of the Social Security benefits he had received on
Shelby's behalf and had not shared with West. The agreement
further provided that Lawson's failure to make the payments would
entitle West, on behalf of Shelby, "to obtain a judgment for the
balance then outstanding, plus attorney's fees and prejudgment and
post-judgment interest at the maximum lawful rate of interest."
Lawson failed to make the payments. The court's final custody
order required Lawson to repay the balance and postjudgment
interest to West. It did not, however, award attorney's fees
associated with obtaining judgment or prejudgment interest to West.
On remand, the superior court should determine the amount of
attorney's fees and prejudgment interest due.
IV. CONCLUSION
We VACATE the lower court's final custody order and
REMAND for a determination of custody and attorney's fees and
prejudgment interest consistent with this opinion. [Fn. 8]
FOOTNOTES
Footnote 1:
Lawson married Melissa Parker in July 1996.
Footnote 2:
Lawson claims that West's visits were sporadic until March
1995.
Footnote 3:
Lawson argues that the agreement contemplated that either
party might live outside of Alaska, and points to a single sentence
in the agreement that states that "the parties shall equally divide
transportation expenses"if they "are living in different cities or
states." We reject this argument. The transportation expenses
provision notwithstanding, the agreement's visitation provision is
based on the assumption that both parties will live in Anchorage.
It includes, for example, an alternating week custody schedule once
Shelby reaches school age, and a limitation on the amount of time
each parent can take Shelby outside of Anchorage. These provisions
make sense only in the context of both parties living in Anchorage.
Thus, the provision of the custody agreement upon which the
superior court principally relied is the provision most affected by
the change of circumstances.
Footnote 4:
We observed in a footnote that Kelly was "an inappropriate
case in which to decide whether to adopt a general presumption
disfavoring divided custody when the parents do not reside in the
same community." Kelly, 926 P.2d at 1169 n.2.
Footnote 5:
Because Dr. Henderson-Dixon never met with Shelby or her
parents and acknowledged that she knew "none of the details of this
child's development,"her report and testimony addressed the
general developmental dangers of an alternating six-month custody
plan for a child Shelby's age.
Footnote 6:
See William F. Hodges, Interventions for Children of Divorce
170 (1986) ("Children of this age [three years old] should not be
required to travel to a distant geographic location for an
extensive visit with the noncustodial parent.").
Footnote 7:
The court observed that "[t]here is also, I think, a -- the
fact that these parents now live several thousand miles apart and
that is in fact the heart of the issue, so we come back to the
question of stability." The court then proceeded to discuss the
stability of West's and Lawson's households. It did not discuss,
however, the potential effects of the geographical distance between
the parties on the stability of Shelby's life. Nowhere else did
the court address the question of proximity.
Footnote 8:
We note that the superior court's final custody order
established a custody schedule to be in effect only "until the
child is of public school age." On remand, the superior court
should either determine a custody schedule for when Shelby begins
kindergarten or establish a mechanism for resolving the issue at a
later date.
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