search the entire site.
or go to the recent opinions, or the chronological or subject indices.
Tompkins v. Tompkins (7/17/98), 961 P 2d 419
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
ERIC RODNEY TOMPKINS, )
) Supreme Court No. S-8373
) Superior Court No.
v. ) 3AN-96-10199 CI
BARBARA DELYNN TOMPKINS, ) O P I N I O N
Appellee. ) [No. 5010 - July 17, 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. Vanessa H. White, Anchorage, for Appellee.
Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.
This appeal requires us to review the superior court's
determination in a dispute between two capable parents, Eric and
Delynn Tompkins, over the custody of their three children. The
superior court decided that, on balance, Delynn was better able to
meet the children's social and emotional needs and to provide them
with continuity in their environment. It also concluded that
Delynn's conduct toward her first husband demonstrated that she
would be dedicated to assuring that the children maintained a
strong, healthy relationship with Eric. The court therefore
awarded primary physical custody to Delynn. Because the record
supports the superior court's findings, we affirm.
II. FACTS AND PROCEEDINGS
Eric and Delynn Tompkins separated in 1995 after nearly
ten years of marriage. Their dispute centers on the custody of
their three children, Reed, age ten, and Katherine and Kelley, age
After Eric and Delynn separated, Eric, a military doctor,
continued to live in the family home on Elmendorf Air Force Base.
Delynn, a registered nurse, moved into an apartment in East
Anchorage. In the two years between the separation and trial, the
three children lived with both parents on a "week on/week off"
custody schedule and continued to attend the military school on
base. The parents, the children, and the custody investigator
agreed that this schedule worked well for all members of the
family. Unfortunately, it became impossible to continue this
shared custody schedule after Eric learned that he was being
transferred to Germany.
Both parents requested primary physical custody of the
children at trial. Although the custody investigator, Pamela
Montgomery, recommended a rotating two-year schedule, Delynn and
Eric agreed that the children would benefit from a more stable
arrangement. As a result, they requested that the children spend
the school year with one parent and summers and some holidays with
the other parent. When asked to assume a schedule in which the
children would live primarily with one parent, Montgomery stated
that she had no concerns about either Eric's or Delynn's parenting
skills. She believed, however, that the children would experience
less disruption in their lives if they remained in Anchorage, near
familiar surroundings, friends, and their half-sister Lauren,
Delynn's daughter from a previous marriage. Montgomery also
reported that the children did not wish to express a preference for
one parent as primary custodian.
At trial, each parent presented his or her own testimony
and the testimony of several witnesses. Eric contended that he
should receive primary custody because it would increase the
children's "face time"with each parent. He explained that his own
work schedule paralleled the children's school year schedule; he
expected to work regular business hours in Germany, Monday through
Friday, with few on-call emergencies. As a result, he was
concerned that if the children lived with him only in the summers,
when they would not be attending school, they would spend the
majority of their time with a child care provider rather than with
Eric explained that if the court awarded him primary
custody, his brother Jeffrey would be available to care for the
children in Germany. A computer software engineer, Jeffrey had
decided to take time off from his career to pursue his interests in
art and travel. He testified that he planned to live with Eric and
care for the children for at least their first six months in
Germany, and perhaps for as long as one year.
Jennifer Olson, Eric's child care provider, also
testified on his behalf. In response to a question about how the
children appeared to be coping with the divorce, Olson attempted to
recount the children's statements about their preference for living
with their father. The superior court cut off this testimony,
however, after Delynn objected to it on hearsay grounds.
Delynn claimed that the children would benefit from
living primarily with her for several reasons. First, because of
her work schedule, Delynn expected to be home for the children, at
least a few days per week, when they returned from school. Second,
she believed that the children would profit from the stability of
remaining in the same community, near their friends and half-sister
Lauren. Finally, Delynn felt that she could better meet the
children's emotional needs.
Like Eric, Delynn also had plans for child care. Her
daughter Lauren testified that she planned to live with her mother
and attend the University of Alaska, Anchorage (UAA) for at least
the next two years. In the past, Lauren had cared for the children
while her mother worked and believed that her schedule at UAA would
be flexible enough to permit her to continue to do so.
Lauren also testified about her relationship with Eric.
When Delynn married Eric, Lauren was six years old. Lauren stated
that she grew to love Eric in the years she lived with him and had
believed that they were close. She explained that since his
separation from Delynn, however, Eric had failed to maintain a
relationship with her. Additionally, Lauren testified that, as she
was growing up, Eric had often made her feel intellectually
inadequate. She recounted one incident when Eric had spanked her
for failing to recite her multiplication tables quickly enough.
As her last witness, Delynn called her first husband,
Alvin Wilson. Wilson stated that, after their divorce, Delynn had
been consistently accommodating in allowing him to spend time with
Lauren and had often gone "beyond the call of duty"in assuring
that Lauren maintained a good relationship with him.
After considering the relevant factors for determining
custody under AS 25.24.150(c), Superior Court Judge Karen L. Hunt
ruled that it was in the children's best interests to live with
their mother during the school year and with their father during
summers and some holidays. She concluded that three of the
statutory factors favored awarding primary physical custody to
Delynn. First, she found that Delynn was better able to meet the
children's social and emotional needs. [Fn. 1] Second, she found
that the children lived in a stable, supportive environment in
Anchorage and that it was in their interest to maintain this
environment. [Fn. 2] Third, Judge Hunt found that Delynn's conduct
towards her first husband showed that she would be willing to make
personal sacrifices to ensure that her children had a healthy,
strong relationship with Eric. [Fn. 3] Judge Hunt also concluded
that the children had not expressed a preference for living
primarily with one parent rather than the other.
A. Standard of Review
We will reverse a superior 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."[Fn. 4] The superior court abuses its discretion when,
"in reaching its decision, [it] considers improper factors, fails
to consider statutorily mandated factors, or gives too much weight
to some factors."[Fn. 5] A factual finding is clearly erroneous
if 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."[Fn. 6]
B. Did the Superior Court Abuse Its Discretion by
Considering Eric's Relationship with His Stepdaughter as a Factor
in Determining Custody of Eric's Natural Children?
According to AS 25.24.150(c)(2), the superior court was
required to compare the parents' desire and capacity to meet the
children's physical, social, religious, mental and emotional needs.
The court ruled that Eric was less able than Delynn to meet the
children's emotional needs because his "lack of any meaningful
contact with"Lauren after the separation had demonstrated
emotional insensitivity "as well as a lack of understanding of
child and adolescent emotional development." Eric argues that
because the custody investigator found that he was an excellent
parent to his three natural children, the superior court should not
have considered his relationship with Lauren as a factor in
deciding custody. He claims that his relationship with "his
college-aged stepdaughter was not a valid predictor of his
relationship with his own children."
Eric has cited no authority precluding trial courts from
considering a parent's relationship with a stepchild in a custody
dispute over that parent's natural children. Our own research
reveals only one case discussing this issue. In Peterson v.
Peterson, [Fn. 7] the Minnesota Court of Appeals decided that a
mother's poor relationship with her stepdaughter did not justify
denying her sole physical custody of her natural daughter. The
court's ruling was based on findings that the difficulties in the
relationship "stemmed from normal step-family problems, serious
marital discord about parenting of the [stepdaughter], and [the
stepdaughter's] own preexisting problems with poor control of her
aggressive impulses."[Fn. 8] The court therefore concluded that
the nature of the relationship was not indicative of the mother's
skills as a parent, not, as Eric urges, that a parent's
relationship with a stepchild is always an invalid gauge of
Like the Peterson court, we are unwilling to conclude
that a relationship with a stepchild is never relevant to a custody
dispute over a parent's natural children. Instead we believe that
the sounder approach, represented by the Peterson decision, is to
consider the factual circumstances underlying the parent-stepchild
relationship in assessing its relevance. Eric has not argued that
his rift with Lauren stems from her own inappropriate behavior, or
from discord over her parenting. The record also provides no
support for concluding that Eric's relationship with Lauren should
not be considered indicative of his parenting skills. Given these
facts, we find that the superior court did not abuse its discretion
in considering the relationship as one factor in its custody
Eric also suggests that even if the court permissibly
considered his relationship with Lauren, it afforded undue weight
to this factor. But nothing in the record suggests that the
superior court weighed this factor more heavily than any of the
other factors that it considered. The superior court devoted one
paragraph to its discussion of this factor, as it did to the issue
of continuity in the children's environment. We therefore find no
merit to this argument.
Finally, the superior court's consideration of Lauren's
role in the family was not limited to the question of whether Eric
had abandoned her. The court also examined the benefit to the
children of remaining in the same household as their half-sister.
This analysis was appropriate. "[C]onsideration should be given to
the desirability of keeping the children of the family together,"
even when the children are only half siblings. Morel v. Morel, 647
P.2d 605, 607-608 (Alaska 1982) (quotation and citations omitted).
In this case, the children had a strong bond with Lauren and
expressed sadness at the thought of leaving her. Although Lauren
was already eighteen at the time of trial, the record shows that
she planned to live with her mother and the children for at least
the next two years. As a result, granting custody to Delynn
allowed the children of the family to remain together.
C. Did the Superior Court Clearly Err in Finding that the
Children Did Not Express a Preference?
Alaska Statute 25.24.150(c)(3) requires superior courts
to consider the preference of a child, if he or she is of
sufficient age and capacity to form a preference, in making a
custody decision. Based on the custody investigator's conclusion
that none of the children preferred to live primarily with one
parent rather than the other, the superior court found that "[t]he
children's preference, if any, is not known to the court." Eric
contends that this finding was clearly erroneous because his child
care provider, Olson, had testified at trial that the children had
expressed a preference to live with Eric. The superior court
excluded this testimony after Delynn objected to it on hearsay
grounds. Eric claims that the court should have considered this
testimony for two reasons: first, Delynn failed to make a motion
to strike the testimony; second, the testimony was proper under
Alaska Evidence Rule 803(3), the state of mind exception to the
There is no requirement in Alaska's rules of evidence or
civil procedure that a trial judge must consider evidence to which
an objection is sustained if the objecting party did not move to
strike the evidence from the record. Additionally, the cases Eric
cites to support his argument do not prove his point. The first
case, Oakes v. Peter Pan Bakers, Inc., [Fn. 9] merely holds that a
tardy objection, without a motion to strike, is an insufficient
basis for claiming that the trial judge erred in an evidentiary
ruling. [Fn. 10] Similarly, the second case, Cooper v. Magic City
Trucking Services, Inc., [Fn. 11] explains that an erroneously
sustained objection is harmless error when the jury hears the
testimony and is not instructed to disregard it. [Fn. 12] Neither
case establishes that a judge must consider evidence unless it is
stricken from the record. We therefore reject Eric's first
Eric argues in the alternative that the superior court
should have overruled Delynn's objection because Olson's account of
the children's preference falls within the state of mind exception
to the hearsay rule. Eric never presented this argument to the
superior court. Although the rules of civil procedure do not
require parties to make a formal exception to a judge's ruling,
they do require that parties communicate how they want the judge to
rule or explain their reason for disagreeing with the ruling. [Fn.
In this case, Eric in no way suggested to the superior
court that he was seeking to introduce the children's preference
into evidence. Instead, Olson volunteered the children's
statements in response to a question on a different topic; Eric had
asked her how the children appeared to be coping with the divorce.
After the superior court sustained Delynn's objection to the
testimony on hearsay grounds, Eric did not ask to be heard on the
matter. Indeed, there is no support in the record for the fact
that he ever requested the court to consider whether Olson could
testify about the children's preferences under the state of mind
exception. Furthermore, Eric failed to list the court's ruling on
this issue as an alleged error in his points on appeal. [Fn. 14]
We therefore conclude that he has waived this issue.
D. Did the Superior Court Err in Concluding that Granting
Custody to Delynn Would Provide More Stability and Continuity for
Alaska Statute 25.24.150(c)(5) instructs courts to
consider "the length of time the child has lived in a stable,
satisfactory environment and the desirability of maintaining
continuity"in determining custody. The superior court concluded
that the children's school, friends, and activities in Anchorage
provided them with a supportive, stable environment. It also found
that it would be in the children's best interest to maintain this
stable environment and concluded that the children would experience
more disruption if they moved to Germany. Eric contends that this
conclusion is clearly erroneous and contests several of the
superior court's findings supporting this conclusion.
Eric first claims that the record does not support the
court's finding that his immediate living circumstances would be
unstable and unknown when he arrived in Germany. The record shows,
however, that Eric failed to provide specifics at trial about the
housing arrangements awaiting him and the children. Similarly,
Eric's trial testimony revealed that the children would have to
move three times in approximately three months if they lived with
their father. Thus, the record amply supports the superior court's
determination regarding the unknown and unstable nature of Eric's
Eric next argues that the court erred in finding that the
children's day care arrangements in Germany would be "uncertain."
Judge Hunt explained in detail, however, why she believed that
Eric's planned child care arrangements would not promote stability
in the children's lives. First, she noted that Eric's intended
child care provider, his brother Jeffrey, was moving to Germany
primarily to live abroad and pursue his interest in art. In
addition, she stated that Jeffrey had no child care experience, and
as a result, the children would lack a knowledgeable child care
provider who was aware of their developmental needs. The record
supports the court's conclusions.
Finally, Eric contends that the superior court erred in
concluding that the children's environment would be stable if they
remained in Alaska. Eric is correct that significant changes await
the children even if they continue to live in Anchorage, such as a
change in schools. The record shows, however, that living with
Delynn would provide the children with access to their half-sister
Lauren, friends, familiar surroundings, and established activities
in Anchorage. Thus, we conclude that the court did not err in
finding that remaining in Alaska would promote stability in the
Faced with a difficult decision in choosing between two
excellent parents, the superior court did not abuse its discretion
in awarding primary custody to Delynn. The record provides ample
support for the court's conclusions that, on balance, Delynn was
better able to meet the children's emotional needs, to provide them
with continuity in their environment, and to assure that they
maintained a strong relationship with their other parent. The
decision of the superior court is therefore AFFIRMED.
See AS 25.24.150(c)(2).
See AS 25.24.150(c)(5).
See AS 25.24.150(c)(6).
Vachon v. Pugliese, 931 P.2d 371, 375 (Alaska 1996) (citations
Kessler v. Kessler, 827 P.2d 1119, 1119 (Alaska 1992).
Brosnan v. Brosnan, 817 P.2d 478, 480 (Alaska 1991).
408 N.W.2d 901, 904 (Minn. App. 1987).
138 N.W.2d 93 (Iowa 1965).
See id. at 96.
264 So. 2d 146 (Ala. 1972).
See id. at 152.
See Alaska R. Civ. P. 46(f).
See Oceanview Homeowners Ass'n v. Quadrant Constr. & Eng'g,
680 P.2d 793, 797 (Alaska 1984) (holding that issue not included in
points on appeal will not be considered absent mitigating