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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
MICHAEL PARK, )
) Supreme Court No. S-8700
Appellant, )
) Superior Court No.
v. ) 3AN-96-4765 CI
)
TARA PARK, ) O P I N I O N
)
Appellee. ) [No. 5171 - September 3, 1999]
)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Peter A. Michalski, Judge.
Appearances: William T. Ford, Anchorage, for
Appellant. Tara Park, pro se, Anchorage.
Before: Matthews, Chief Justice, Eastaugh,
Fabe, Bryner, and Carpeneti, Justices.
BRYNER, Justice.
FABE, Justice, with whom CARPENETI, Justice,
joins, dissenting.
I. INTRODUCTION
Michael Park appeals a superior court order granting
custody of his daughters to Tara Park, their mother. Under
AS 25.24.150(c), a court determining child custody must consider a
number of specified factors relating to the best interests of the
child. Here, the superior court expressly addressed only one of
these statutory factors in its findings and did not clearly
indicate that it had considered any others. Because the court's
findings are incomplete and do not fully explain its decision, we
hold that they fail to comply with AS 25.24.150(c). We therefore
remand for findings considering all relevant statutory factors.
II. FACTS AND PROCEEDINGS
Tara and Michael Park were married in Anchorage in 1988
and had two children together: Lacey, born March 6, 1990, and
Baille, born May 20, 1991.
As early as 1995, Tara and Michael decided to leave
Alaska in June 1996 so that Michael could work for his father's oil
company in Texas. In anticipation of the move, they placed their
house on the market, began selling furniture and other possessions,
and bought airline tickets to Texas in June. But in late May
Michael discovered that Tara was having an affair with another man;
on May 25, without informing Tara, he took the children and flew to
Texas.
In June 1996 Tara filed for divorce, requesting sole
legal and physical custody of the two children. She also moved for
interim custody of both children. Michael opposed Tara's efforts
to obtain permanent and interim custody, asking the court to award
him legal and physical custody of both children.
In September 1996 the superior court awarded interim
custody to Michael but provided for regular telephone contact
between Tara and her daughters and "generous visitation"rights in
the event Tara was able to visit Texas.
The parties ultimately tried the issue of permanent
custody in April 1998, twenty months after the court awarded
interim custody to Michael. In the interim, Tara filed several
motions requesting visitation with the children in Alaska and, on
one occasion, in Louisiana. Michael opposed Tara's motions,
insisting that the interim custody order called for all visitation
to occur in Texas. The court nonetheless granted each of the
motions, ordering Michael to make the children available for out-
of-state visits with Tara over Christmas vacation in 1996 and
during spring, summer, and Christmas vacations in 1997. Michael
failed to comply with the order allowing visitation over the 1997
Christmas holidays, claiming that the court issued it too late to
enable him to make airline reservations for the children's travel
to Alaska.
In January 1998, several months before trial, custody
investigator Susan Arth filed a custody investigation report. Arth
recommended that Tara be awarded sole legal and primary physical
custody of the children, primarily because she believed -- based in
large part on Michael's sudden and unannounced removal of the
children to Texas, his consistent opposition to Tara's visitation
motions, and his failure to comply with the 1997 Christmas
visitation order -- that he would not be cooperative in permitting
visitation.
At the conclusion of trial, the superior court announced
its decision. Focusing on Michael's removal of the children from
Alaska and his resistance to Tara's requests for visitation, the
court agreed with Arth's recommendation and awarded Tara sole legal
and primary physical custody of Lacey and Baille. The court
subsequently issued written findings and conclusions confirming its
oral ruling. Michael appeals.
III. DISCUSSION
A. Standard of Review
We will reverse an award of child custody if we find that
the trial court abused its discretion. [Fn. 1] A court abuses its
discretion if it issues a custody decision without considering all
statutorily mandated factors that are relevant to the case at hand.
[Fn. 2]
B. Adequacy of the Superior Court's Findings under AS
25.24.150(c)
In challenging the award of custody to Tara, Michael
argues that the superior court's findings are inadequate under
AS 25.24.150(c). We agree.
Alaska Statute 25.24.150(c) requires the superior court
to base its custody rulings on the child's best interests and lists
nine potentially relevant factors that the court must consider
before making its best-interests determination:
(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.
While a court determining custody must always consider
each of these statutory factors, it need not refer to all of them
in explaining its custody decision. The court needs only to
discuss those factors that it considers actually relevant in light
of the evidence presented in the case before it; [Fn. 3] express
mention of each factor is not required, [Fn. 4] but the court's
findings must at a minimum "give us a clear indication of the
factors which [it] considered important in exercising its
discretion or allow us to glean from the record what considerations
were involved."[Fn. 5]
Here, in its written findings of fact and conclusions of
law, the court focused on a single factor -- the parents' "desire
and ability . . . to allow an open and loving frequent relationship
between the child and the other parent"[Fn. 6] -- to the exclusion
of all others, stating, in relevant part:
5. The court acknowledges that both
parties recognize that it is critical for the children's well being
that the parties do everything they can to overcome the past
problems. Furthermore, that the parties are lucky that the
children are doing well in spite of the wrenching away at the
separation.
6. It is evident that there is
continuing difficulty by Michael Park in feeling free to freely
provide for transportation and work with Tara Park in achieving
visitation with the children. This is a reason in choosing which
party should have custody. The court can only look at past
behavior and finds there has been rigidity by Mr. Park in response
to his responsibilities regarding visitation and that he has
resisted following the spirit of the court's orders in that regard,
even though he has been shown to be a caring, and effective father
in many, many ways.
Based on this factor alone, the court's written findings
deemed it "appropriate to follow the recommendations of the custody
investigator, Susan Arth, . . . with some modifications." The
court's oral findings do not disclose active consideration of any
other statutory factor; though somewhat more elaborate, they
essentially mirror the written findings. [Fn. 7]
While these findings clearly indicate one statutory
factor that the court considered important to its analysis, they
provide no meaningful insight into what the court thought of other
factors that undisputedly had relevance under the evidence actually
presented at trial -- or whether the court even considered other
relevant factors.
For example, AS 25.24.150(c)(5) requires the court to
consider "the length of time the child has lived in a stable,
satisfactory environment and the desirability of maintaining
continuity." But the court's written findings fail to mention
continuity, and its oral findings suggest that it thought the
factor irrelevant:
[T]he one thing that does seem evident to me
is that there is continuing difficulty at this point for Mr. Park
in being -- feeling free to freely provide for transportation and
work with Ms. Park in achieving visitation for her children here
and I think that that is preeminently a reason in choosing between
which parent since I have to choose some parent and it's not merely
a reliance on status quo . . . .
By stating that "I have to choose some parent"and that
Michael's resistance to visitation "is preeminently a reason in
choosing between which parent,"the superior court suggests that
its custody award focuses on this single factor to the exclusion of
others. Moreover, the court reinforces this impression by
categorically rejecting "mere[] . . . reliance on status quo"as a
valid basis for awarding custody -- a rejection that seemingly
overlooks the prominent role assigned to the status quo in
AS 25.24.150(c)(5), which expressly commands courts to consider
"the length of time the child has lived in a stable, satisfactory
environment and the desirability of maintaining continuity." The
court thus creates a strong impression that it specifically
declined to consider factor (c)(5). [Fn. 8]
Yet this factor was undoubtedly at issue in this custody
proceeding. By the time of the custody hearing, the children had
been living with Michael in Texas for nearly two years. A home
study conducted by a Texas social worker shortly before trial
observed that the children have their own rooms and have adequate
and appropriate clothing, that they receive above average grades
and are enrolled in a school district with "an excellent reputation
and scholastic record in [the] area,"and that Michael supports the
girls' engagement in extracurricular activities such as martial
arts and jazz dance. The Texas home study -- which Alaska custody
investigator Arth appended to her own custody report -- concluded
that "Mr. Park provides an adequate appropriate home environment."
Nor can we glean by implication from Arth's custody
report the court's views concerning the elements of factor (c)(5)
-- the children's need for a stable, satisfactory environment and
the desirability of maintaining continuity. Although Arth's report
recommends an award of custody to Tara, it contains little solid
information about the home setting or school life that the girls
could expect to face in Alaska or about the likely impact on their
lives of a sudden dislocation from their established home in Texas.
Arth's report gives cursory recognition to the existence of
advantages and disadvantages in both home settings but contains no
meaningful discussion of the desirability of maintaining
continuity:
There are certainly advantages of returning
the children to their mother's care, in the community where they
built their young lives. There are also advantages of allowing the
children to remain with their father, in Texas, where they are
building a new life.[ [Fn. 9]]
The dissent observes, however, that because the parties
concentrated on the visitation disputes during the custody hearing,
"the trial court reasonably focused its attention upon the effect
that the visitation disputes have had on the children."[Fn. 10]
Yet the trial court's duty to determine custody required it to look
beyond the points specifically disputed by the parties: AS
25.24.150(c) expressly commanded the court to "determine custody in
accordance with the best interests of the child"based on a
consideration of all of the statutory factors that were relevant to
the issue.
Moreover the dissent's observation misconstrues the trial
court's findings. The findings do refer briefly to the effect that
Michael's and Tara's original separation had on their children,
noting that both children were "doing well in spite of [that]
wrenching away." But neither the written nor oral findings discuss
how the subsequent visitation disputes affected the children.
Indeed, apart from mentioning that both children appear to be doing
well, the court's findings are completely silent on the children's
current "physical, emotional, mental, religious, and social needs"
[Fn. 11] and say nothing about how those needs might be impacted by
abrupt relocation to Alaska.
Nor did the custody investigator meaningfully address
these factors. [Fn. 12] In fact, at the custody hearing, Arth
acknowledged, "I don't have the first-hand information about how
[Michael] is with the children in his environment. I also do not
have information about Mother's home. In a sense I have more
information about Mr. Park's home than I do about Ms. Park's
because we don't do home visits here, but that was done in Texas."
At the custody hearing Arth's testimony focused almost exclusively
on the suddenness of Michael's departure to Texas and his
subsequent resistance to Tara's efforts to obtain visitation. Arth
emphasized that the major component of her custody recommendation
was her lack of confidence that Michael would allow Tara visitation
"without undue hassle and so on." Yet she candidly admitted that
she had "no way of knowing"what would happen if the court awarded
Tara custody:
I have no way of knowing how [Tara] will
handle [visitation]. She asserts that she will support open, you
know, frequent contact. On the other hand, Mr. Park has made the
same [assertion] so it's difficult to know with any certainty what
might occur.
While the dissent rightly notes "that interference with
visitation is a particularly significant issue with respect to
determining custody,"[Fn. 13] it is important to emphasize that,
but for a Christmas visit to Alaska that the superior court granted
only several days before it was to occur and that Michael claimed
he was unable to arrange due to lack of available airline
reservations, Michael complied with all of the court's visitation
orders. The court specifically faulted Michael not for disobeying,
but for resisting "the spirit"of the court's visitation orders --
a resistance manifested largely through Michael's repeated
litigation over Tara's motions for visitation.
Yet Tara's motions were themselves necessitated by the
superior court's interim custody order, which failed to establish
any specific visitation schedule and merely provided that Michael
was to allow Tara to visit the children freely in Texas. Notably,
Arth testified at the custody hearing that a clear visitation order
would likely alleviate many of the problems with visitation,
regardless of who received custody:
I certainly think [it] likely that if
everything is clearly spelled out that the problems will reduce
regardless of where the children are placed. I think very clear
instructions would be helpful to this family.[ [Fn. 14]]
In sum, neither Arth's custody report nor her testimony
shore up the superior court's incomplete findings.
Tara nonetheless suggests that the court's findings are
adequate under our recent decision in Borchgrevink v. Borchgrevink.
[Fn. 15] But Borchgrevink is easily distinguishable. The trial
court in Borchgrevink actually made extensive findings concerning
all relevant factors listed in AS 25.24.150(c); it also stated the
legal conclusions underlying its custody decision. [Fn. 16] The
court neglected only to enter integrative findings linking its key
legal conclusions to any particular findings of fact. [Fn. 17]
Given this setting, we upheld the trial court's findings and
conclusions, finding that the record as a whole enabled us to infer
which specific facts the court had relied on in reaching its legal
conclusions. [Fn. 18]
In affirming the custody award in Borchgrevink, we
recognized that findings of fact and conclusions of law serve three
vital purposes in child custody cases: to aid the trial court in
its own reasoning process, to aid this court in conducting
effective appellate review, and to enable the losing party to
decide if the case presents a question worthy of appeal. [Fn. 19]
We then concluded that the trial court's findings met each of these
goals: we noted that the comprehensive nature of the findings
ensured that the trial court had engaged in a thorough and
appropriate reasoning process; [Fn. 20] we observed that the
substantive information expressed in the findings clearly indicated
the steps that the trial court had followed and, therefore,
provided an adequate basis for appellate review; [Fn. 21] finally,
given that the findings covered all of the actually disputed
issues, we concluded that they enabled the losing party to evaluate
the efficacy and scope of appealing the decision. [Fn. 22]
But in sharp contrast to Borchgrevink, the findings at
issue here meet none of these intended purposes. Their brevity,
their almost exclusive focus on a single statutory factor, and
their conclusory adoption of the custody investigator's
recommendations provide no assurance that the trial court followed
the thorough, deliberate reasoning process required under
AS 25.24.150(c). These same shortcomings preclude effective
appellate review, since they force us to speculate as to what
relevant statutory factors other than factor (c)(6) the court might
have considered and what it thought of those factors. And
similarly, these shortcomings deprive Michael of any reliable means
to determine if the court based its custody decision on any factual
or legal error that he might successfully raise on appeal.
The point bears repeating that adequate findings in a
child custody case are not "unnecessary work for the trial judge."
[Fn. 23] Rather, they promote a balanced consideration of all
factors bearing on the best interests of the child; they encourage
parents to understand and accept the trial court's ruling; and they
enable this court to conduct meaningful appellate review -- an
indispensable part of our justice system. Given their vital role,
proper findings must not be regarded as a "burden,"[Fn. 24] even
by trial judges who are saddled with heavy domestic relations
caseloads.
As the dissent points out, "we have previously affirmed
trial courts' custody decisions that rested primarily on lack of
cooperation in visitation."[Fn. 25] Yet as the dissent also
acknowledges, we have recognized that "trial courts should not give
undue weight to any one statutory factor to the exclusion of other
factors."[Fn. 26] This is precisely the danger we perceive in the
present case. The superior court's singular focus on Michael's
resistance to Tara's requests for Alaska visitation suggests that
it attached overriding importance to this one factor. And our own
review of the record leaves us unpersuaded that the court's custody
award reflects a balanced consideration of all relevant factors.
IV. CONCLUSION
We therefore conclude that the superior court's findings
fail to comply with AS 25.24.150(c) and preclude effective
appellate review. Accordingly, we REVERSE and REMAND for entry of
express findings of fact and conclusions of law addressing all
statutory factors that the superior court deems relevant in
determining custody. [Fn. 27] On remand, the court should allow
the parties an opportunity to present updated evidence and should
base its new findings on the children's current best interests.
FABE, Justice, with whom CARPENETI, Justice, joins, dissenting.
I. INTRODUCTION
I disagree with the court's conclusion that the superior
court's findings were inadequate. Both the superior court's
findings and the trial record in this case reveal that the trial
judge considered all relevant and disputed statutory factors and
came to a sound custody decision. I therefore respectfully
dissent.
II. DISCUSSION
As we articulated in Borchgrevink v. Borchgrevink, [Fn.
1] the standard of review for alleged inadequacy of a trial court's
factual findings is "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."[Fn.
2] We have emphasized in several of our prior custody decisions
that, "[w]hile 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."[Fn. 3] This rule is in accord with that
of other jurisdictions. [Fn. 4] In the end, we should not overturn
a trial judge's decision if he or she has made "a sound decision
and no reason exists . . . to overturn it."[Fn. 5]
Notwithstanding these well-established principles, the
court today remands this case because the superior court "fail[ed]
to mention"the factor of continuity [Fn. 6] and did not "fully
explain its decision"in its findings. [Fn. 7] The court cites
Borchgrevink in support of the notion that trial courts must
"discuss"all relevant factors in its decision. [Fn. 8] But we
stated in Borchgrevink that either the trial court's findings "or"
the record must clearly indicate which factors the trial court
considered. [Fn. 9] This statement marked our reaffirmation of a
long line of cases establishing that express findings are
unnecessary if the record reveals which factors the court found
determinative in awarding custody. [Fn. 10]
The court also imposes the additional requirement on
trial judges that they "look beyond the points specifically
disputed by the parties."[Fn. 11] This language is in direct
conflict with our long-standing recognition that trial courts need
only make factual findings on the relevant statutory factors that
are in dispute. "Facts which are either uncontested or irrelevant
would not assist this court in assessing the propriety of an award.
Mere recital of the statutory language helps no one."[Fn. 12]
Because of its failure to look to both the findings and
the record for an indication of the factors considered by the trial
judge, the court incorrectly concludes that the superior court's
findings were inadequate. I disagree with the court's conclusion
because I believe that Judge Michalski's findings, along with the
record, do in fact provide a "clear indication of the factors
considered important by the trial court."[Fn. 13] The primary
factor analyzed by the superior court in its custody determination
was Michael's interference with visitation. The superior court
noted in its written findings that Michael had refused to "freely
provide for transportation and work with [Tara] in achieving
visitation." And Judge Michalski remarked at trial that Michael's
obstructionist behavior was the "preeminent[]"reason for his
custody decision.
In Borchgrevink, we looked to the questioning and
arguments at trial for further guidance as to which factors the
court considered in its analysis. [Fn. 14] Here, the parties'
briefs and questions at trial indicate, in accord with the trial
court's findings, that the problem with visitation was the primary
disputed factor in the case. The bulk of the testimony from both
sides, including the testimony of Tara, Michael, the custody
investigator, and the closing arguments of each side, centered
around the visitation disputes. Michael's trial brief also focused
on the visitation disputes, along with a paragraph mentioning that
the children should stay in Texas because they had been there for
two years and were doing well in school. Michael similarly
concentrated on the visitation disputes in his appellate brief.
Accordingly, the trial court reasonably focused its attention upon
the effect that the visitation disputes have had on the children,
since that was the major issue litigated at trial.
The court today identifies only one statutory factor that
it claims the superior court failed to consider adequately: the
stability that the children might experience from remaining in
Texas. [Fn. 15] But the trial court's findings reveal that the
court did consider stability as a factor. The court noted at trial
the inevitable difficulty the children would have in leaving
friends and family in Texas but ultimately viewed the visitation
problems as more significant than the stability of the status quo
in Texas:
[O]ne thing that does seem evident to me is
that there is continuing difficulty . . . for Mr. Park in . . .
freely providing for transportation and work with Ms. Park in
achieving visitation . . . and I think that that is preeminently a
reason in choosing between which parent since I have to choose some
parent and it's not merely a reliance on status quo.
(Emphasis added.) The trial court also noted in its written
findings how lucky the parents were that the children were not
having more problems, given the visitation difficulties:
The court acknowledges that both parties
recognize that it is critical for the children's well being that
the parties do everything they can to overcome the past problems.
Furthermore, . . . the parties are lucky that the children are
doing well in spite of the wrenching away at the separation.
(Emphasis added.) Although the trial court acknowledged that
Michael could provide well for the children, it ultimately decided
that the visitation problems were paramount:
The court can only look at past behavior and
finds there has been a rigidity by Mr. Park in response to his
responsibilities regarding visitation and that he has resisted
following the spirit of the court's orders in that regard, even
though he has been shown to be a caring, and effective father in
many, many ways.
As well as drawing its own conclusions, the trial court
also relied on the custody investigator's assessment of the
stability factor in her report to the court. A review of the
custody investigator's fifteen-page report belies the court's
claims that the custody investigator only gave "cursory
recognition"to the advantages of the children living in Texas and
provided "no meaningful discussion"of the need for continuity.
[Fn. 16] The court quotes only one paragraph from the report to
support this premise. [Fn. 17] What the court does not excerpt is
the report's discussion of, among other things, the religious and
after-school activities in which both children are involved in
Texas; the girls' school life in Texas; and the fact that Lacey
misses her Anchorage friends and dislikes Texas, whereas Baille
likes Texas. The report also discusses the Texas home study
conducted by a social worker before trial. The report acknowledges
that the study provided "valuable information about Mr. Park's
living situation"but notes the contradictions between the Texas
home study, which the custody investigator herself requested, and
the custody investigator's own interviews with the children. In
her testimony at trial, the custody investigator again referred to
the Texas home study, explaining her review of it and why she took
issue with some of the findings contained in the study.
The court dismisses the trial judge's adoption of the
custody investigator's recommendations as "conclusory."[Fn. 18]
But in Duffus v. Duffus, [Fn. 19] we noted that a trial court's
adoption of a custody investigator's conclusions on a particular
factor, even without further explanation, can be sufficient to show
that the trial court addressed the factor. [Fn. 20] One Michigan
court has likewise held that trial courts need not articulate the
factual bases for their custody determinations when doing so would
repeat language contained in a custody investigator's report
adopted by the court:
We do not believe that . . . the circuit court
can be said to have failed to state its findings on each [statutory
factor], . . . since the court expressly adopted the findings
enunciated by the referee. Those findings are presented in detail
in five pages in the referee's report. A repetition of the
referee's findings in the court's order of custody, rather than a
declaration of adoption of those findings, was not required.[ [Fn.
21]]
Here, the superior court expressly included in its written order a
similar declaration of the custody investigator's conclusions.
Although the superior court did not specifically adopt the custody
investigator's findings on any particular factor, as did the court
in Duffus, it did refer to the custody investigator's report in its
oral findings in the context of discussing the inevitable
difficulty the children would have in saying good-bye to friends
and family in Texas. More fundamentally, absent some specific
allegation supported by the record, the supposition that a trial
court would adopt a custody investigator's recommendations without
carefully reading and considering the contents of the report is at
best unwarranted.
The superior court's findings also serve the purposes
underlying the standard for adequacy of findings that we outlined
in Borchgrevink: aiding the trial court's analysis, allowing
meaningful appellate review, and enabling litigants to determine
which issues to appeal. [Fn. 22] Judge Michalski's findings
provide a clear indication of the primary basis for the custody
decision -- Michael's interference with visitation -- and provide
a discussion of the only other relevant disputed factor --
stability. Accordingly, no reason exists to believe that the
superior court's reasoning was guided by anything other than
consideration of all the appropriate statutory factors. For the
same reason, the findings are sufficiently reviewable and
adequately identify the issues on appeal. Indeed, Michael's
exclusive focus in his trial and appellate briefs on visitation
difficulties and stability shows that the superior court's findings
made the bases for the custody decision sufficiently clear to the
litigants. [Fn. 23]
It is also worth noting that interference with visitation
is a particularly significant issue with respect to determining
custody. [Fn. 24] For example, substantial interference with
visitation is sufficient under Alaska law to constitute a
substantial change of circumstances that may justify and require
modification of custody after a court has already issued a decree,
if modification is in the child's best interests. [Fn. 25] One New
York court wrote that interference with visitation is also an
especially important factor in awarding custody: "Interference
with the relationship between a child and a noncustodial parent by
the custodial parent is an act so inconsistent with the best
interests of the child as to per se raise a strong probability that
the offending party is unfit to act as a custodial parent."[Fn.
26] Here, the custody investigator noted how unworkable the
situation had become, notwithstanding the advantages of the Texas
living situation:
There are also advantages of allowing the
children to remain with their father, in Texas, where they are
building a new life. On the balance, it seems clear that
visitation between the children and their mother will continue to
be impeded if Michael retains physical custody. Although this
investigator has no concrete information about what Tara is likely
to do about visitation, it is fairly clear that the current
situation works poorly for the children.
(Emphasis added.) Although trial courts should not give undue
weight to any one statutory factor to the exclusion of other
factors, [Fn. 27] we have previously affirmed trial courts' custody
decisions that rested primarily on lack of cooperation in
visitation. [Fn. 28]
Disputes over child custody are among the most difficult
cases a trial court must face. [Fn. 29] Remanding a case such as
this because of perceived "shortcomings"[Fn. 30] in the trial
court's written findings will result in unnecessary work for the
trial judge, whose time would be better spent resolving undecided
cases in the superior court's heavy domestic relations caseload.
As long as the record reveals which factors the trial court found
important in making its custody determination and supports the
trial court's ultimate decision, we need not remand for further
findings.
III. CONCLUSION
I believe that the court's decision to burden the trial
judge by requiring him to make additional written findings on
relevant statutory factors is unsupportable under our case law.
Because the superior court's findings in this case were adequate to
reveal the court's analysis, allow meaningful review, and guide the
litigants on appeal, I respectfully dissent.
FOOTNOTES
Footnote 1:
See Siekawitch v. Siekawitch, 956 P.2d 447, 449 (Alaska 1998).
Footnote 2:
See id.
Footnote 3:
See Borchgrevink v. Borchgrevink, 941 P.2d 132, 138-39 (Alaska
1997) (noting no error in trial court's failure to expressly
address those factors not disputed by the parties and those not
favoring the parent to whom the court denied custody).
Footnote 4:
See id. at 139-40 (holding that though the court did not refer
to AS 25.24.150(c), the findings adequately revealed its reasoning
in that they provided a clear indication of the factors that the
court found important); see also Duffus v. Duffus, 932 P.2d 777,
779 (Alaska 1997) (holding that "[w]hile 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").
Footnote 5:
Borchgrevink, 941 P.2d at 137 n.2.
Footnote 6:
AS 25.24.150(c)(6).
Footnote 7:
In its post-trial oral remarks, the superior court said:
Neither of you is without fault in this
thing. It's clear to the court that Mr. Park acted based on hurt
feelings and emotions and did what a person may do when they think
that "I've got to protect my children, I've got to protect myself.
I've got to do what's in my interests"in reaction to hurtful
conduct and behaviors that were shocking to him at the time. That
doesn't mean what he did was right or the best interest for the
children. Indeed, I think, you know, after seeing this case now
for the past several months, I think the two of you are extremely
lucky at how well the children are doing in spite of that. In
other words, they're doing well in spite of that wrenching away
that occurred back at the separation.
I think that the one thing that does seem
evident to me is that there is continuing difficulty at this point
for Mr. Park in being -- feeling free to freely provide for
transportation and work with Ms. Park in achieving visitation for
her children here and I think that that is preeminently a reason in
choosing between which parent since I have to choose some parent
and it's not merely a reliance on status quo which parent will
promote visitation. I can only look at behavior in the past and I
have to say that there has been rigidity in response to that
responsibility that does not -- is not at the level that I would
expect somebody with his background. In other words, he comes out
of the Marines. He knows the idea of duty and he knows how to
abide by it and yet, he has resisted following the spirit of the
court's orders and I'm disappointed for him in that and hope as
time progresses that he gets past that because he is obviously a
caring and effective father in many, many ways.
But I think on the balance that it's
appropriate to follow the recommendations of Ms. Arth and I do so
with some modification.
Footnote 8:
In our view, these findings do not, as the dissent suggests
they do, evince a balanced consideration of Michael's visitation
problems and the desirability of maintaining continuity of the
children's life in Texas. See Dissent at 22. To the contrary,
they appear to indicate the superior court's categorical rejection
of the status quo as a valid consideration for purposes of awarding
custody. But assuming that the findings might reasonably be read
to have the meaning ascribed to them by the dissent, this ambiguity
itself would be a telling sign of the need for more specific
findings.
Footnote 9:
Moreover, although the court adopted Arth's recommendations,
it did not adopt or purport to incorporate by reference any of the
factual findings or analysis set out in her report.
Footnote 10:
Dissent at 21.
Footnote 11:
AS 25.24.150(c)(1).
Footnote 12:
As the dissent points out, in its oral remarks following the
custody hearing, the superior court mentioned the inevitable
difficulty the children would have in saying goodbye to friends and
family in Texas and, in so doing, referred to the investigator's
report. See Dissent at 24-25. But this discussion -- the court's
only reference to the potential impact of its custody order on the
children -- occurred only after the court had already entered its
custody decision, as it was considering when the change of custody
should actually be implemented and how subsequent holiday
visitation should be apportioned. In mentioning the custody
report, the court specifically referred only to its recommendations
for future visitation, which assumed that the children would move
to Alaska immediately if the court awarded custody to Tara. The
report itself did not address this assumption, but at the hearing
Arth testified that, if the court followed her recommendation to
award custody to Tara, she believed that it would be "important for
the children to have as much closure as possible." Arth did not
otherwise report on, or testify to, the likely emotional impact
that a change of custody might have on the children.
Footnote 13:
Dissent at 26.
Footnote 14:
In discussing this evidence we do not suggest that the trial
court's factual findings concerning Michael's resistance to
visitation are clearly erroneous. The limited purpose of our
discussion is to emphasize that when we consider the trial court's
findings on this point in the context of the record as a whole, we
find it far from obvious why the trial court gave them dispositive
significance in the overall custody determination.
Footnote 15:
941 P.2d 132 (Alaska 1997).
Footnote 16:
See id. at 135-37, 138.
Footnote 17:
See id. at 137, 139-40.
Footnote 18:
See id. at 139-41.
Footnote 19:
See id. at 139; see also id. at 142 (Matthews, J.,
dissenting).
Footnote 20:
See id. at 139.
Footnote 21:
See id.
Footnote 22:
See id.
Footnote 23:
Dissent at 28.
Footnote 24:
Id. at 28.
Footnote 25:
Id. at 27 (citing Julsen v. Julsen, 741 P.2d 642, 649 (Alaska
1987)).
Footnote 26:
Dissent at 27 (citing I.J.D. v. D.R.D., 961 P.2d 425, 428
(Alaska 1998)).
Footnote 27:
Because we remand for additional findings, we need not address
Michael's remaining arguments.
FOOTNOTES (Dissent)
Footnote 1:
941 P.2d 132 (Alaska 1997).
Footnote 2:
Id. at 137 (emphasis added) (citing Bird v. Starkey, 914 P.2d
1246, 1249 n.4 (Alaska 1996)). See also Julsen v. Julsen, 741 P.2d
642, 649 n.10 (Alaska 1987) (noting that an express tally of
factors is unnecessary as long as the record reflects consideration
of factors); McDanold v. McDanold, 718 P.2d 467, 470 (Alaska 1986)
("Mere recital of the statutory language helps no one. However,
the trial court should specifically address all relevant statutory
factors where applicable.").
Footnote 3:
Duffus v. Duffus, 932 P.2d 777, 779 (Alaska 1997). See also
Bird, 914 P.2d at 1249 (requiring trial court to explain its
reasoning only "where those reasons are not apparent from the
record"); Lowery v. McMurdie, 944 P.2d 50, 53-54 (Alaska 1997)
(Fabe, J., concurring in part and dissenting in part) (noting that
remand is inappropriate if either findings or record disclose
court's reasoning). Cf. Bellanich, 936 P.2d at 146 (Fabe, J.,
concurring in part and dissenting in part) (noting in context of
property division case that findings need not be extensive); D.H.
v. State, DHSS, 929 P.2d 650, 657 (Alaska 1996) (Fabe, J.,
dissenting) (arguing that, in a CINA proceeding, the court's
findings or the record need only show the bases for the court's
decision).
Footnote 4:
See, e.g., McDanold, 718 P.2d at 469-70 (citing cases); In re
Marriage of Lester, 791 P.2d 1244, 1246 (Colo. App. 1990) (holding
that a trial court need not make specific findings if the record as
a whole indicates that the court considered the necessary factors);
In re Marriage of Diehl, 582 N.E.2d 281, 290 (Ill. App. 1991)
(same); Peterson v. Peterson, 408 N.W.2d 901, 903 (Minn. App. 1987)
(same); In re Marriage of Saylor, 756 P.2d 1149, 1151 (Mont. 1988)
(holding that a trial court need not make specific findings if
custody order is supported by substantial evidence in the record).
Footnote 5:
Julsen, 741 P.2d at 649 n.10.
Footnote 6:
Op. at 8.
Footnote 7:
Op. at 1.
Footnote 8:
Op. at 5 (emphasis added).
Footnote 9:
See Borchgrevink, 941 P.2d at 137.
Footnote 10:
See Bird v. Starkey, 914 P.2d 1246, 1249 n.4 (Alaska 1996);
Julsen, 741 P.2d at 649 n.10; McDanold, 718 P.2d at 470.
Footnote 11:
Op. at 10-11.
Footnote 12:
McDanold, 718 P.2d at 470.
Footnote 13:
Borchgrevink, 941 P.2d at 137.
Footnote 14:
See id. at 139.
Footnote 15:
See Op. at 8-9; see also AS 25.24.150(c)(5). Michael argues
this point only to the extent that he includes a sentence in his
brief stating that stability and continuity are legitimate custody
factors and inaccurately claims that the trial court "did not make
any findings at all with respect to any of the [factors]."
Footnote 16:
Op. at 10.
Footnote 17:
See id.
Footnote 18:
Op. at 15.
Footnote 19:
932 P.2d 777 (Alaska 1997).
Footnote 20:
See id. at 780.
Footnote 21:
Constantini v. Constantini, 430 N.W.2d 748, 750 (Mich. App.
1988).
Footnote 22:
See Borchgrevink v. Borchgrevink, 941 P.2d 132, 139 (Alaska
1997).
Footnote 23:
Although the court's expressed concern is that the trial judge
failed to make sufficient findings, the court also appears to
second-guess the findings that it acknowledges the trial judge did
make with respect to the visitation disputes. See Op. at 12-13.
The court states that its discussion of the trial judge's findings
is for the "limited purpose"of comparing the findings to the
record as a whole to determine whether the trial judge should have
given the visitation issue "dispositive significance." Op. at 13
n.14. But the court does not discuss the findings in the context
of other evidence; rather, it attempts to draw new inferences from
the evidence as to whether Michael violated "the spirit"of the
trial judge's visitation orders, or whether he was merely
responding reasonably to Tara's motions and the court's interim
custody order. See Op. at 13. As the court itself acknowledges,
such new inferences should not be drawn unless the trial judge's
factual findings are clearly erroneous. See Op. at 13 n.14.
Footnote 24:
See generally Kimberly K. Holtz, Comment, Move-Away Custody
Disputes: The Implications of Case-by-Case Analysis & the Need for
Legislation, 35 Santa Clara L. Rev. 319, 345-47 (1994) (emphasizing
the importance of unhindered visitation to the best interests of
the child in cases in which one parent moves out of state); Jeff
Atkinson, Criteria for Deciding Child Custody in the Trial and
Appellate Courts, 18 Family L.Q. 1, 25-26 (1984) (noting
preeminence of interference with visitation as a custody factor and
listing benefits of giving custody to the parent who best
facilitates visitation).
Footnote 25:
See Hermosillo v. Hermosillo, 797 P.2d 1206, 1209 (Alaska
1990); see also Lee v. Cox, 790 P.2d 1359, 1362 (Alaska 1990). See
generally Scott E. Friedman, The Law of Parent-Child Relationships
176 (1992) (noting that disregard of court visitation orders and
failure to bring children to court appearances may justify a change
in custody).
Footnote 26:
Maloney v. Maloney, 617 N.Y.S.2d 190, 191 (App. Div. 1994).
Footnote 27:
See, e.g., I.J.D. v. D.R.D., 961 P.2d 425, 428 (Alaska 1998).
Footnote 28:
See, e.g., Julsen v. Julsen, 741 P.2d 642, 649 (Alaska 1987).
Footnote 29:
See id. at 648; McDanold v. McDanold, 718 P.2d 467, 468
(Alaska 1986).
Footnote 30:
Op. at 15.
