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I.J.D. v. D.R.D. (7/31/98), 961 P 2d 425
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
) Supreme Court No. S-8309
) Superior Court No.
v. ) 3KN-95-833 CI
D.R.D., ) O P I N I O N
Appellee. ) [No. 5013 - July 31, 1998]
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. Carol A. Brenckle, Kenai, for Appellee.
Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.
MATTHEWS, Chief Justice.
This case involves a custody dispute between I.J.D.
(Irma) and D.R.D. (Daniel), the parents of J.N.D. (Joseph). [Fn. 1]
The trial court awarded sole legal and primary physical custody of
Joseph to Daniel with limited visitation to Irma. We affirm the
award of custody to Daniel but vacate the visitation award to Irma
and remand for reconsideration.
II. FACTS AND PROCEEDINGS
Irma was previously married to Daniel's younger brother,
Dell. In February 1991, when Irma was eight months pregnant with
Dell's child, Dell was killed in the Gulf War. Their child, R.N.D.
(Rachel), was born in April 1991. Soon after Rachel's birth, Irma
moved from Washington to Alaska to be near Dell's extended family.
She purchased a home next to Dell's parents.
In November 1992 Irma began a relationship with Dell's
older brother, Daniel. Irma and Rachel moved into Daniel's home in
June 1993; Joseph was born in March 1994. During this time Irma
and Daniel's relationship was volatile, plagued by frequent
arguments and mutual domestic violence. Daniel had shared custody
of his eleven-year-old son, Adam, from a previous marriage.
Eventually, Adam refused to visit Daniel while Irma was present,
due to Irma's unpredictable, hostile behavior. Daniel and Irma
permanently separated in October 1994 and Irma, along with Rachel
and Joseph, moved out of Daniel's home.
Soon after the separation, Daniel began visiting Joseph.
Irma initially expressed a preference that Daniel only visit Joseph
at her home and in her presence. Eventually, Irma allowed Daniel
to take Joseph to his home; however, she continued to exhibit
considerable reluctance to expand Daniel's visitation with either
Joseph or Rachel. In February 1995 Daniel and Irma had an
explosive argument about visitation. This resulted in Irma leaving
an answering machine message at Daniel's home that in part said:
[Y]ou may never see the kids again, unless
it's accidental at a relative's house or anywhere else. You may
not talk to them unless they talk to you first; you cannot talk to
them about your house life, period, because they are not part of
After that incident, Irma suspended Daniel's visitation with
In June 1995 Irma began a relationship with John. She
eventually required Daniel to negotiate and schedule most visits
through John, which increased the friction surrounding visitation.
Irma began encouraging Joseph and Rachel to refer to John as
"daddy"and at one point allowed Joseph to use John's last name.
Eventually, Irma refused to allow Daniel any contact at all with
Rachel. Irma's relationship with John ended in November 1996.
Daniel filed a Complaint for Custody in October 1995,
seeking shared legal and physical custody of Joseph and visitation
with Rachel, his niece. Irma counterclaimed for sole legal and
primary physical custody of Joseph. Daniel then filed a motion
seeking interim custody and visitation; Irma opposed and filed a
countermotion. The trial court granted Irma's countermotion in
November 1995, awarding interim sole legal and primary physical
custody of Joseph to Irma and adopting Irma's recommendation that
Daniel be allowed one overnight visit every other weekend and
"incidental"daytime visitation of two to three hours in duration,
two to three times weekly. [Fn. 2] The trial court then ordered a
In January 1996 Daniel filed a Motion to Clarify Order on
Interim Custody. He requested an additional twenty-four-hour
visitation period to replace the "incidental"visitation. Daniel
complained that John had taken complete control over the
visitation schedule and that John interpreted the term "incidental"
to mean "accidental"visits at Daniel's parents' home. Daniel also
claimed that Irma had violated the interim visitation order. The
trial court denied the motion.
Pursuant to the request of Custody Investigator Susan
Arth, the court ordered Daniel and Irma to undergo psychological
evaluations conducted by Dr. Paul Turner. Dr. Turner observed each
parent's interaction with Joseph, conducted clinical interviews,
and administered several psychological assessments. Dr. Turner
found that Daniel suffered from mild to moderate depression and
that Irma suffered from a personality disorder "not otherwise
specified"with a clinically significant mixture of histrionic and
dependent aspects. He noted that both parents should participate
in treatment. Although Dr. Turner observed that Irma and Daniel
each had adequate parenting skills to care for Joseph, he concluded
that their abilities were impaired by their psychological
conditions. Dr. Turner also found that Daniel appreciated the
significance of maintaining a relationship between Irma and Joseph,
but that Irma had difficulty appreciating Joseph's needs and
allowed her anger and hostility to interfere with Daniel's
relationship with Joseph.
Ms. Arth filed the Custody Investigation Report on May
29, 1997. She recommended that the trial court award Daniel sole
legal and primary physical custody of Joseph with weekend and
holiday visitation to Irma. Ms. Arth emphasized that in the
absence of this arrangement, Irma would consistently interfere with
Daniel's relationship with Joseph and that Joseph would be
"overwhelmed by his mother's dependency needs and fits of anger."
She also expressed concern for Joseph's physical well-being if he
remained in Irma's care.
The custody trial was held in August 1997. After
considering substantial trial testimony in support of both parents,
the court awarded sole legal and primary physical custody of Joseph
to Daniel. It granted visitation to Irma as outlined in the
Custody Report, consisting of three weekends of every four,
alternating holidays, and other times as arranged by both parents.
A. Standard of Review
We will only disturb the trial court's resolution of
custody issues if controlling findings of fact are clearly
erroneous or if the record shows that an abuse of discretion has
occurred. See Zimin v. Zimin, 837 P.2d 118, 123 n.10 (Alaska
1992). Findings of fact are clearly erroneous when we are left
with a definite and firm conviction, viewing the record as a whole,
that a mistake has been made. See Duffus v. Duffus, 932 P.2d 777,
779 (Alaska 1997). An abuse of discretion exists if the trial
court considered improper factors, failed to consider statutorily
mandated factors, or assigned disproportionate weight to particular
factors while ignoring others. See Borchgrevink v. Borchgrevink,
941 P.2d 132, 134 (Alaska 1997).
B. The Trial Court Did Not Err by Awarding Sole Legal and
Primary Physical Custody to Daniel
At the outset, we emphasize that the goal in child
custody proceedings is to arrive at a decision that promotes the
best interests of the child. See McDanold v. McDanold, 718 P.2d
467, 468 (Alaska 1986); S.N.E. v. R.L.B., 699 P.2d 875, 877 (Alaska
1985). The trial court must consider the criteria set forth in AS
25.24.150(c) [Fn. 3] as well as all other relevant factors. See AS
25.20.060; Evans v. Evans, 869 P.2d 478, 480 (Alaska 1994). The
trial court found that factors (c)(1), (2), (5) and (6) weighed in
favor of Daniel, while all others were equally balanced.
1. The capability and desire of each parent to meet
Joseph's physical, emotional, mental, religious, and social needs
Irma argues that the trial court erred by finding that
Daniel was better able to meet Joseph's needs. In support, she
points to testimony indicating that she has a three-bedroom home
with a large yard, has an income over three times that of Daniel,
would enroll Joseph in private school, would involve Joseph in
church, has cared for Joseph since birth, and has more effective
parenting skills. She also contends that the trial court
mischaracterized the evidence by referring to Daniel's depression
as "occasional"and "less debilitating"than her personality
Daniel responds that the trial court's findings on this
issue are supported by the testimony at trial, Dr. Turner's
evaluations, and Ms. Arth's Custody Report. He contends that the
evidence indicated that Irma has difficulty controlling her anger
in front of Joseph, has difficulty placing Joseph's needs above her
own, and that her psychological problems adversely impacted her
ability to care for Joseph. Daniel also notes that, despite any
income disparity, he is fully able and willing to care for Joseph.
Contrary to the premise underlying some of Irma's
arguments, the trial court determined that both parents were
equally capable of meeting Joseph's physical and religious needs.
However, the court did conclude that Daniel could better meet
Joseph's emotional, mental, and social needs. With respect to AS
25.24.150(c)(1) and (2) the trial court stated:
Each parent can provide for the physical
and religious needs of [Joseph] as reflected above and each parent
has the desire to meet all of the needs of [Joseph]. But [Daniel]
is better able than [Irma] to provide for the emotional, mental and
social needs of [Joseph] and has demonstrated these abilities in
connection with his parenting of [Adam]. Although [Daniel's]
ability to parent is affected by occasional depression, [Irma]
suffers from a personality disorder not otherwise specified with
histrionic and dependent features. The court finds that [Daniel's]
mental and emotional state is much less debilitating than that of
[Irma]. Dr. Turner testified that [Daniel's] [sic] personality
disorder makes it very difficult for her to appreciate [Joseph's]
We conclude that the trial court's findings are not
clearly erroneous. First, although the trial court acknowledged
that Irma generally had appropriate parenting skills and that
Joseph and Rachel were both healthy, well-adjusted children, it
noted that Irma's personality disorder and emotional instability
clearly impaired her ability to parent Joseph. Both Dr. Turner and
Ms. Arth emphasized that the disorder prevented Irma from
appreciating Joseph's needs and from elevating them above her own
needs. Ms. Arth expressed concern that Irma's proclivity toward
"unprovoked rages"placed Joseph at risk for both emotional and
physical harm. Further, both Dr. Turner and Ms. Arth testified
that Daniel should have sole legal and primary physical custody of
Other witnesses also testified that Irma had difficulty
controlling her hostility and that she inappropriately expressed
anger in front of Joseph. Jane, Irma's close friend, testified
that Irma intentionally tore the foreskin on Joseph's penis to
falsely accuse Daniel of child abuse, and that Irma had used
excessive discipline on Joseph, especially during toilet training.
The trial court found Jane's testimony especially credible given
her close relationship with Irma and Jane's change from her earlier
position supporting an award of custody to Irma. Further, Daniel's
ex-wife testified that Irma had been irrational and violent toward
both her and Adam.
Conversely, the reports and testimony indicated that
Daniel was balanced, calm and nonaggressive in his parenting
duties, and was fully able to meet all of Joseph's needs.
Second, the evidence supports the trial court's
observation that Irma's personality disorder did have a greater
impact on Joseph than did Daniel's depression. Both Dr. Turner and
Ms. Arth concluded that Irma had significant psychological problems
that were less amenable to treatment than Daniel's depression. Dr.
Turner "described [Irma's] personality disorder as serious and one
that would require a lengthy period of therapy before [she] would
be able to appreciate the needs of her son [Joseph] and his father
[Daniel]." Dr. Turner also noted that Daniel's depression could be
situationally related to Daniel's concern over whether he would be
allowed to develop a meaningful relationship with Joseph. Irma
offered the testimony of psychologist Dr. Kathleen Dinius in
rebuttal. Dr. Dinius testified that Irma did not have a histrionic
or dependent personality disorder and that Irma's parenting skills
had improved. However, the trial court accorded less weight to Dr.
Dinius's conclusions because her conclusions were based on minimal
clinical observation and Irma's self-reports, and because Dr.
Dinius failed to conduct any objective tests or review Dr. Turner's
In light of the entire record, we cannot say that the
trial court clearly erred, especially in light of the significant
credibility issues at trial. See Evans, 869 P.2d at 480-81
(according substantial deference to trial court's ability and
opportunity to assess witness credibility and demeanor); Sheridan
v. Sheridan, 466 P.2d 821, 824 (Alaska 1970).
2. The desirability of maintaining stability and
Next, Irma argues that the trial court erred regarding
the factor of stability and maintaining continuity. First, she
argues that Joseph should have remained in her custody because he
has resided with her since he was seven months of age. Second,
relying on Craig v. McBride, 639 P.2d 303, 306 n.9 (Alaska 1982),
she suggests that the court should have declined to separate Joseph
and his half-sister Rachel.
Daniel responds that it was not in Joseph's best
interests to remain with Irma because her mental health negatively
impacted her parenting. He argues that this circumstance justifies
separating Joseph and Rachel. Moreover, Daniel contends that the
custody arrangement facilitates Joseph's relationship with his
The trial court considered the desirability of
maintaining continuity, the issue of separating Joseph and Rachel,
and the willingness of each parent to foster a relationship between
Joseph and the other parent in the same general discussion. As to
the factors in AS 25.24.150(c)(5) and (6), it stated:
[Joseph] is three and one-half years old
and during his short life has lived almost continuously with his
mother and sister, [Rachel]. However, both parents are capable of
providing a stable, satisfactory environment. The two most
important issues to be addressed by this court in making its
custody determination involve evaluation of the effects of
separating [Joseph] from his sister, [Rachel], and the desire and
relative ability of each of the parties to allow for an open,
frequent and loving relationship between [Joseph and] each parent.
As important as continuity is to the best
interests of [Joseph], the deprivation that [Joseph] will suffer if
he does not reside with his older sister can be ameliorated if
[Irma] allows [Rachel] to visit frequently with [Joseph] in the
home of [Daniel] or his extended family. The shock of being
removed from his mother's home will lessen over time, especially if
[Daniel] approaches his responsibilities as custodial parent of
[Joseph] with the same wisdom and foresight as he has with [Adam].
On the other hand, the court finds that [Irma], in a large part due
to her personality disorder, cannot or will not allow an open and
loving frequent relationship to develop with [Daniel]. This the
court believes to be true unless and until such time as she has
received treatment sufficient to overcome the effects of this
Irma's argument that Joseph should remain with her simply
because of her status as primary caregiver lacks merit. See Evans,
869 P.2d at 483 n.4 (disapproving of "a rule giving custodial
preference to the primary caregiver"in context of maintaining
child's emotional stability). Although Joseph has primarily
resided with Irma since a young age, it is apparent that Daniel
will make significant efforts to ease Joseph's transition into his
home, including encouraging a close relationship with Irma and
Rachel. Moreover, Joseph's grandparents have been actively
involved in Joseph's care and, along with Daniel's extended family,
will likely continue to provide a support network to Daniel, Irma,
Joseph, Rachel, and Adam. See McQuade v. McQuade, 901 P.2d 421,
426 (Alaska 1995) ("[S]tability is often a function of parental
attitude and not of geography.") (quoting Craig, 639 P.2d at 308
(Rabinowitz, C.J., concurring)). We also note that Joseph will
remain in a familiar geographical area, since both parents reside
in the same community.
Second, the trial court should give careful consideration
to the issue of separating siblings or half-siblings. See Craig,
639 P.2d at 306 & n.9; Morel v. Morel, 647 P.2d 605, 607-08 (Alaska
1982). Although it is desirable to keep siblings together, no
rigid rule prevents separation. Instead, the matter is committed
to the trial court's
discretion to best respond to the myriad of
factual settings which will invariably arise in custody matters, at
all times cognizant that it is the best interests of the child
which is the paramount consideration. Though maintaining sibling
relationships will typically be in the best interests of the child,
cases will undoubtedly arise where the best interests of the chid
Craig, 639 P.2d at 306 (footnote omitted). Since Daniel has
custody of Adam on a flexible, shared basis, and has indicated his
willingness to encourage Joseph's relationship with Rachel, Joseph
should be able to sustain close relationships with both siblings
under the custody decision. See, e.g., Rooney v. Rooney, 914 P.2d
212, 217 (Alaska 1996) (approving of child's change of residence
from mother to father even though it involved "destabilizing
effect"where best interests of child served).
Given the foregoing, the trial court's findings as to
these factors are not clearly erroneous.
3. The willingness and ability of each parent to
foster an open and continuous relationship between Joseph and the
Irma argues that the trial court erroneously found that
she would not allow Joseph to develop and maintain a frequent and
loving relationship with Daniel. In support, she asserts that she
initially encouraged Daniel to visit Joseph shortly after she and
Daniel separated and later voluntarily increased Daniel's
Daniel argues that the evidence showed that Irma
frequently and consistently interfered with his visitation and
attempted to replace him with John as Joseph's father-figure.
Further, Daniel suggests that the evidence demonstrated that he
would encourage a close, ongoing relationship between Joseph and
The trial court's specific findings regarding this factor
are set out in Part III.B.2. supra. Dr. Turner and Ms. Arth
testified that Irma had consistently interfered with Daniel's
relationship with Joseph and would likely continue to do so in a
shared custody arrangement. Both also noted that Irma believed
that any relationship between Joseph and Daniel should stem from
Joseph's own initiative. Dr. Turner felt that this was especially
inappropriate in light of Joseph's young age.
Testimony from other witnesses also established that Irma
unduly restricted Daniel's visitation and encouraged Joseph to
develop a primary father-child relationship with John. Daniel's
mother related that "if [Irma] had her way, [Daniel] would never
have [Joseph], and that she only let [Joseph visit Daniel] because
she would be in contempt of court if [Joseph] didn't . . . ."
Further, the trial court observed that Irma had implemented a
"systematic cleansing of [her] home of items that had been built by
[Daniel] or owned by [Dell] prior to [her] marriage . . . because
[she] intended through the establishment of her new relationship
with [John] to displace [Daniel] as a father-figure for either
By contrast, Dr. Turner and Ms. Arth were convinced that
Daniel would encourage a frequent and open relationship between
Irma and Joseph. Daniel testified that it was important to
maintain a healthy relationship between Irma and Joseph and open
communication between himself and Irma. And Daniel's ex-wife
testified that Daniel had been fully cooperative in their shared
custody of Adam and supportive of Adam's close relationship with
both of his parents.
We therefore conclude that the trial court did not err in
finding that Irma would not promote an open and continuous
relationship between Daniel and Joseph.
C. The Trial Court Abused Its Discretion by Failing to Make
Adequate Findings in Support of the Award of Limited Visitation
Irma argues that the trial court abused its discretion by
awarding her visitation of only three overnights a month, thus
depriving her of the "opportunity to have a meaningful relationship
with [Joseph]." Specifically, she faults the trial court for
failing to make "integrative findings,"because it did not
articulate why the limited visitation served Joseph's best
The trial court adopted the recommendations as proposed
by Ms. Arth, granting Irma visitation consisting of:
Three weekends of every four from Saturday at
9:00 a.m. to Sunday at 7:00 p.m.; alternate holidays (i.e.
[Joseph's] Birthday, Easter Sunday, Thanksgiving Evening,
Thanksgiving Day, Christmas Evening, and Christmas Day); [Joseph]
spend Mother's Day and Mother's and [Rachel's] Birthdays with
Mother; [Joseph] spend Father's Day and Father's and [Adam's]
Birthdays with Father; other times as arranged by the parents.
It went on to state:
The court believes that the parties will soon
agree to depart from the visitation schedule reflected in paragraph
1. Visitation flexibility was recommended by Dr. Turner but at
this time the court cannot, for the reasons stated by Dr. Turner
and the child custody investigator recommend joint legal or joint
We have held that the trial court must make specific
findings supporting a limited award of visitation unless the
reasons can be gleaned from the record. See Lone Wolf v. Lone
Wolf, 741 P.2d 1187, 1190-91 (Alaska 1987) (remanding for specific
findings where court awarded father no visitation during week but
mother worked seven days each week); see also Bird v. Starkey, 914
P.2d 1246, 1249 (Alaska 1996) (noting that findings of fact are
necessary "so that a reviewing court may clearly understand the
grounds on which the lower court reached its decision.") (quoting
Waggoner v. Foster, 904 P.2d 1234, 1235 (Alaska 1995)); cf. Monette
v. Hoff, ___ P.2d ___, Op. No. 4987 at 4 (Alaska, May 15, 1998)
(upholding supervised visitation where trial court "makes findings
which specify why unsupervised visitation is contrary to the best
interests of the child.") (quoting J.F.E. v. J.A.S., 930 P.2d 409,
409 (Alaska 1996)). We have also recognized that "the cooperation
necessary to allow more liberal visitation is far less than that
needed for joint custody." Lone Wolf, 741 P.2d at 1191.
In this case, we are unable to discern why the trial
court awarded such restricted visitation. We note that the order
made no provision for Joseph to spend extended summer or holiday
vacations with Irma. We therefore remand this issue to the trial
court to make specific findings explaining the award of visitation.
The trial court may, in its discretion, conduct a supplemental
evidentiary hearing and is authorized to expand the visitation
award if appropriate.
We AFFIRM the judgment of the trial court granting sole
legal and primary physical custody to Daniel. We VACATE the
visitation award and REMAND for additional findings.
Pseudonyms are used for the parties' names.
The order did not grant Daniel visitation with Rachel. Daniel
later withdrew this request because he felt that it had caused Irma
to interfere negatively with his relationship with Rachel.
AS 25.24.150(c) provides:
(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
(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