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Monette v. Hoff (5/15/98), 958 P 2d 434
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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
LINDA M. MONETTE, )
) Supreme Court No. S-8188
Appellant, )
) Superior Court No.
v. ) 3AN-93-9713 CI
)
ROBERT A. HOFF, JR., ) O P I N I O N
)
Appellee. ) [No. 4987 - May 15, 1998]
______________________________)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Michael L. Wolverton, Judge.
Appearances: Linda M. Monette, pro se,
Anchorage. Stephen F. McKee, Anchorage, for Appellee.
Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.
PER CURIAM.
Following trial, the superior court awarded a child's
custody to his father and ordered that the mother's visitation be
supervised. We affirm these orders, because there was credible
trial evidence that the mother was unable to meet the child's
psychological and emotional needs and posed a potential risk of
abduction and flight, and that unsupervised visitation might harm
the child. But we remand the child support issue for
clarification, because it is unclear whether the court considered
the issue de novo or deferred to an administrative support order.
Linda Monette (formerly Wade) and Robert Hoff were never
married. They had one child, Thomas Wade-Hoff (Tommy), born
February 7, 1992. Hoff moved from Anchorage to Houston, Texas in
late June 1993. He filed a complaint for custody in the superior
court in Anchorage in October 1993. After interim proceedings,
Tommy moved to Texas to live with his father in September 1994. In
November 1994 the Alaska Child Support Enforcement Division (CSED)
calculated Monette's child support obligation as $370 per month.
A trial was held from March 24 through March 26, 1997.
Superior Court Judge Michael L. Wolverton granted full custody of
Tommy to Hoff and awarded Monette supervised visitation. The
superior court also found that Monette had the ability to continue
to pay $370 per month child support. Monette appeals.
"We will reverse a trial court's resolution of custody
issues only if [we are] convinced that the record shows an abuse of
discretion or if controlling factual findings are clearly
erroneous." Vachon v. Pugliese, 931 P.2d 371, 375 (Alaska 1996)
(citation omitted).
When reviewing a trial court's findings of
fact, we are directed by the principle that "[i]t is primarily the
trial court's function to weigh the evidence for the purpose of
making findings, and on appeal, deference must be given to the
trial court's decision, particularly because of the trial court's
advantage in observing the witness."
Holl v. Holl, 815 P.2d 379, 380 (Alaska 1991) (quoting Bonjour v.
Bonjour, 566 P.2d 667, 669 (Alaska 1977)). See also J.F.E. v.
J.A.S., 930 P.2d 409, 411 (Alaska 1996) (reviewing superior court's
order of supervised visitation under abuse of discretion standard).
We review a trial court's decision on a motion to modify child
support for an abuse of discretion. See Yerrington v. Yerrington,
933 P.2d 555, 557 n. 3 (Alaska 1997).
Custody. Trial courts are instructed to award child
custody on the basis of the best interests of the child. AS
25.20.060, AS 25.24.150(c). The superior court found that the
evidence weighed in favor of an award of custody to Hoff. The
court made findings on each of the statutory factors relevant to
custody. The findings squarely supported an award of custody to
Hoff. In particular, there was credible evidence to support the
superior court's findings that Monette was unable to meet Tommy's
psychological and emotional needs (and may have posed a danger to
Tommy), including the testimony of Dr. Lazur; the two Guardians ad
Litem (GALs); Monette's former husband; Hoff; and Tommy's paternal
grandfather. The superior court was best situated to weigh the
evidence before it and its findings are well-supported by the
record. See Holl, 815 P.2d at 380; Lone Wolf v. Lone Wolf, 741
P.2d 1187, 1190 (Alaska 1987). The court's factual findings are
not clearly erroneous, and it did not abuse its discretion in
awarding sole legal custody to Hoff. The evidence upon which
Monette relies did not require the superior court to do otherwise.
Monette contends that the superior court inappropriately
relied on the testimony of former GAL Judith Rich, and gave too
little weight to the evidence given by Monette's expert, Dr. Smith.
Assessment of witness credibility is left to the discretion of the
superior court. See Hanlon v. Hanlon, 871 P.2d 229, 232 (Alaska
1994). Thus, the weight to be given to evidence elicited during
Rich's direct and cross examination was a matter of discretion for
the superior court. The superior court may have concluded that Dr.
Smith's psychological evaluation was unpersuasive because Monette
gave Dr. Smith misleading and incomplete information, and because
he never saw Tommy individually or observed Tommy and Monette
together. The court was not obliged to assess the evidence the way
Monette would. We therefore affirm on the question of custody.
Visitation. We have stated that "while unrestricted
visitation is the norm, supervised visitation can be required when
the court makes findings which specify why unsupervised visitation
is contrary to the best interests of the child." J.F.E., 930 P.2d
at 409. The appropriate type of visitation was a disputed matter
turning on witness credibility. See Hanlon, 871 P.2d at 232.
Credible evidence supported the court's concern that Monette posed
a risk of abduction and flight. For example, GAL Pamela Montgomery
stated that "Ms. Monette's history of secreting away her daughter
from [the daughter's father], as well as her conduct of not telling
Mr. Hoff exactly where the child was here in Alaska for a period of
time does cause concern that she presents a risk of abduction of
the child."
We also note that the need for supervision goes beyond
the risk of abduction and flight. Dr. Lazur testified that
"[u]nsupervised and unrestricted time . . . could cause serious and
irreparable damage to the child." The superior court expressly
found that "unsupervised contact between Linda Monette and Thomas
Wade-Hoff could result in psychological damage to the child,"and
that "Thomas has reacted adversely, showing signs of distress and
deteriorated behavior when exposed to Linda Monette even for
relatively short periods of visitation." Given these findings,
which are not clearly erroneous, the superior court did not abuse
its discretion by awarding only supervised and limited visitation
to Monette.
The superior court orally stated that the visitation
schedule should remain in effect for three years, at which point
Monette may be entitled to a modification if she can show that
there has been a change in circumstances. We conclude that this
was appropriate. The superior court recommended that Monette seek
psychological counseling and enroll in parenting classes. Should
Monette participate in such counseling and classes, she may cease
to pose any risk of harming or abducting Tommy. Whenever Monette
has demonstrated that she no longer presents such risks, she can
ask the court to revisit the requirement of supervision and to
create a plan for eventually eliminating that restriction.
Although we prefer that a court ordering supervised visitation also
specify a plan by which unsupervised visitation can be achieved,
Monette's condition and behavior are not so easily remedied that it
was mandatory for the court to adopt a specific plan.
Child Support. In November 1994 CSED calculated
Monette's support obligation as $370 per month. Monette filed a
motion in the superior court custody proceedings to modify this
obligation. She argued that CSED had miscalculated the support
obligation in the first place, and that a medical condition
prevented her from working. She affied that she had failed to
respond to CSED's initial inquiries as to her income, and that CSED
had erroneously imputed $22,174.62 as income to her in the absence
of correct information. In support of her motion, Monette attached
her 1994 tax return that showed her income to be $2,439 rather than
the $22,174.62 calculated by CSED, and a physician's chart
indicating that Monette had developed "mild carpal tunnel
syndrome." At a November 1995 hearing on Monette's motion,
Superior Court Judge Brian C. Shortell stated that Monette's motion
to modify was ill-taken, that CSED's calculation was valid, that
Monette had made no effort to correct CSED's alleged
miscalculation, that there was no material change in circumstances,
and that Monette's testimony regarding her inability to work based
on a medical condition was not believable. Accordingly, Judge
Shortell denied the motion. After the subsequent child custody
trial, Judge Wolverton's Findings of Fact and Conclusions of Law
stated that "Linda Monette is currently employed and has the
capability of continued employment at the same rate. She therefore
has the ability of paying child support at the same rate which she
has been paying during the pendency of this action -- $370.00 per
month."
Judge Shortell's oral findings from the November 1995
hearing and Judge Wolverton's written findings from the 1997 trial
do not show how either judge determined Monette's child support
obligation. The superior court may have applied a deferential
standard of review of CSED's prior calculation of child support and
adopted the support amount as calculated by CSED because the court
found that there was no change in circumstances. If that was what
happened, it would have been error, because the superior court
could not simply adopt or deferentially review an administrative
decision by CSED. This was a judicial custody and support
proceeding, not an administrative appeal from CSED's decision.
But the superior court may have conducted an independent review of
Monette's finances and determined that she should pay $370 in
monthly child support. Because the findings do not reveal clearly
whether there was a de novo determination of the support
obligation, we remand for clarification.
On remand, the superior court should confirm that it
previously considered Monette's child support obligation de novo.
If it did not, it should now do so. The superior court is free to
hear additional evidence regarding Monette's finances and should
make appropriate findings as to the child support award. See Terry
v. Terry, 851 P.2d 837, 838 (Alaska 1993) (holding that trial court
abused its discretion in failing to disclose the actual numbers it
used to calculate the child support award).
For the reasons stated above, we AFFIRM the custody and
visitation awards, and REMAND for clarification of the child
support award.
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