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v. Virgin (11/5/99) sp-5197
Virgin v. Virgin (11/5/99) sp-5197
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
JOSEPH WALTER VIRGIN, )
) Supreme Court No. S-8686
Appellant, )
) Superior Court No.
v. ) 3AN-97-7437 CI
)
KATHEY LYNN VIRGIN, ) O P I N I O N
)
Appellee. ) [No. 5197 - November 5, 1999]
______________________________)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Brian C. Shortell, Judge.
Appearances: Lynda A. LimĒn, Anchorage, for
Appellant. Wayne A. Ross and Colleen R. Baxter, Ross & Miner,
P.C., Anchorage, for Appellee.
Before: Matthews, Chief Justice, Eastaugh,
Fabe, Bryner, and Carpeneti, Justices.
FABE, Justice.
EASTAUGH, Justice, with whom MATTHEWS, Chief
Justice, joins, dissenting in part.
I. INTRODUCTION
Joseph Virgin appeals the superior court's interim orders
and the findings of fact and conclusions of law entered in
connection with its decree of divorce. Because we conclude that
the superior court did not abuse its discretion with respect to any
of its findings, conclusions, or orders, we affirm them in their
entirety.
II. FACTS AND PROCEEDINGS
In September 1997, after nineteen years of marriage,
Kathey Virgin filed for a divorce from her husband, Joseph Virgin.
Along with her complaint, Kathey filed a motion for interim relief
under AS 25.24.140. The court granted her motion; it awarded her,
among other things, $500 per month in spousal support and $2,500 in
interim attorney's fees. Following the divorce trial, the court
entered written findings of fact and conclusions of law and a
decree of divorce. Joseph appeals.
III. DISCUSSION
A. Standards of Review
We review a trial court's interim order, [Fn. 1] award of
rehabilitative alimony, [Fn. 2] custody and visitation award, [Fn.
3] division of marital property, [Fn. 4] and award of attorney's
fees and costs [Fn. 5] for abuse of discretion. We review a trial
court's underlying factual findings for clear error. [Fn. 6] We
reverse a child support award if we have a definite and firm
conviction that a mistake has been made. [Fn. 7]
B. Interim Order
Joseph challenges the interim award of spousal support
and attorney's fees, arguing that reversal is required because the
superior court failed to make factual findings regarding the
parties' relative economic positions and Joseph's ability to pay.
We disagree. A trial court must articulate the reasons for its
holding where those reasons are not apparent from the record. [Fn.
8] But the basis of the interim award here is obvious from the
record; the court made extensive findings regarding the parties'
economic positions when it entered findings of fact and conclusions
of law following trial. [Fn. 9] In addition, Joseph did not
demonstrate that it was impossible for him to pay the amount
ordered. We therefore affirm the superior court's interim award.
C. Rehabilitative Alimony
The superior court awarded Kathey rehabilitative alimony
of $1,000 per month for four years. Joseph's argument that
Kathey's educational plans are too vague to justify the award is
without merit. "[A] spouse's educational plan is sufficient for
the purpose of supporting a rehabilitative alimony award if the
spouse identifies a career goal, a degree program aimed at
realizing that goal, and a time frame during which the degree may
be earned through reasonable diligence."[Fn. 10]
Kathey met these requirements. Kathey identified a
career goal; she testified that she wanted to become a teacher or
a nurse. She identified a degree program aimed at earning the
necessary credentials: Colorado State University (CSU) in Fort
Collins, Colorado. [Fn. 11] She testified that she already had a
CSU student handbook and that she had researched tuition and the
availability of grants and financial assistance for low-income
single parents. She also set out a time-frame of three to four
years for earning the degree.
Joseph's claim that he has insufficient resources to pay
the rehabilitative alimony is also unpersuasive. His monthly
payments total no more than $3,648, including child support of
$1,980 for three children (one of whom was about to become
emancipated), alimony of $1,000, and the home mortgage payment of
$668. Because the court awarded Joseph possession of the marital
home, and because it was not clear that the parties intended to
immediately sell the marital home, [Fn. 12] the mortgage payment at
least in part represented Joseph's own housing expense. Moreover,
in his pretrial memorandum, Joseph agreed to pay rehabilitative
alimony for four years.
D. Custody
Joseph appeals the court's decision to award Kathey sole
custody of the parties' three minor children.
1. Determination of children's best interests
The standard for determining if a trial court's factual
findings on custody are inadequate is whether the findings "give us
a clear indication of the factors which the superior court
considered important in exercising its discretion or allow us to
glean from the record what considerations were involved."[Fn. 13]
The trial court need only "discuss those factors that it considers
actually relevant in light of the evidence presented in the case
before it."[Fn. 14] 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. 15]
Here, the trial court made clear the reasons for its
decision to award primary custody to Kathey. The trial court first
noted Joseph's hostile behavior toward Kathey's request for money
for the children's needs. It took special note of Joseph's
"obstructive"behavior, including his efforts to convince the
children not to move to Colorado:
During the period of the parties' separation,
Mr. Virgin explained to the children about his finances in an
effort to enlist their aid or to convince them they should not go
to Colorado with their mother. . . . He told one of the children
the "cupboards were bare"and he could not pay transportation
costs. He told the children a number of negative things about
their proposed move to Colorado.
While acknowledging that Joseph's behavior may have been partially
caused by stress, the trial court concluded that "it fits together
with other evidence . . . to show a pattern of behavior towards
Mrs. Virgin that indicates disregard of her status as an equal in
the custodial relationship and lack of impulse control when issues
regarding finances or decisions regarding the children are
considered."
The court also described Joseph's emotional and physical
abuse of Kathey:
Mr. Virgin closed all the family accounts when
the parties separated. Mr. Virgin has verbally abused and
disparaged Mrs. Virgin during the separation. He has in the past
physically abused Mrs. Virgin, grabbing her by the throat, pushing
her to the floor, and screaming and cursing at her.
The court determined that joint custody was not an option in part
because, "[t]aken as a whole, the evidence shows that Mr. Virgin
was a domineering husband and an uncommunicative, obstructive, and
angry person during the parties' separation."
The trial court also considered which parent would best
facilitate visitation given Kathey's probable move to Colorado:
Mrs. Virgin plans to move to Colorado in the
summer of this year with the children. If she does so, it is
likely the ability of the parties to cooperate and communicate will
probably worsen. Mr. Virgin, were he to receive an award of sole
or primary custody, would be less likely to encourage an open and
loving and respectful relationship between the children and Mrs.
Virgin than would Mrs. Virgin . . . .
Joseph contends that a remand is necessary because the
trial court failed to make findings on two statutory factors: the
children's custody preferences and whether staying with Joseph in
Glennallen would promote stability and continuity in the children's
lives. [Fn. 16] But our previous decisions establish that the
trial court need not refer to all of the statutory factors in
explaining its custody decision. [Fn. 17] It must only discuss
"those factors that it considers actually relevant in light of the
evidence presented."[Fn. 18] In other words, "[e]xpress mention
of each factor is not required."[Fn. 19] And in this case, the
trial judge's decision need not have specifically referred to the
children's preferences or the need for stability because those
factors were not disputed or independently relevant.
Nor does Rule 52(a) "effectively impose[] a
memorialization requirement"as the dissent alleges. [Fn. 20] This
court has never held that Rule 52(a) requires explicit findings for
each of the statutory factors in AS 25.24.150(c). On the contrary,
we have consistently stated that courts need not memorialize their
findings for each given factor. Where there is "no substantive
dispute"about a certain factor, the court need not specifically
address it. [Fn. 21]
The issue of children's preferences was never squarely
raised at trial. Neither Kathey nor Joseph presented any evidence
or argument in relation to the children's preferences. Joseph's
trial brief only mentioned in passing the issue of the children's
preferences as part of a complete list of all the AS 25.24.150(c)
factors. And Joseph's attorney did not mention the children's
preferences in her closing argument at trial. Indeed, Joseph's
appellate brief contains only one sentence of argument on this
point: "Nowhere in the record is there any evidence the trial
court considered any of the three children be given a preference of
placement." Joseph does not develop this argument, and he does not
argue that the question was a relevant and disputed issue at trial.
Moreover, during the testimony at trial, the issue of the
children's wishes was disputed exclusively in the context of
determining whether Joseph had been manipulating the children by
bribing or scaring them into staying in Glennallen with him.
Kathey claimed at trial that Joseph "will go to any lengths in
which to scare [the children] to make them believe that there
apparently [are] no nice people Outside, that there will be nothing
for them in [Colorado]." When asked by his attorney whether he had
bribed Joanna into staying, Joseph answered: "I did not. . . .
She asked me, she says if I stayed, would you build me a barn and
I said I would." One question later, when asked about his son,
Tyler, Joseph acknowledged a negative statement he had made to
Tyler about Colorado:
I went up and I asked him, I said did mom talk
to you about Colorado. And he said, yeah. He said -- he said
there would be some neat things to do there and he said that -- I
said one thing you wouldn't want to be caught in is a blizzard, you
know. And he said that wouldn't be fun and I said, yes. And I
said -- I said do you want to go to Colorado and he cried and said
no.
And Joseph admitted challenging Joanna about her desire to move to
Colorado, telling her, "it's a state that you have not even seen or
been to."
Based on this testimony, the trial judge found that
Joseph had "told the children a number of negative things"about
Colorado and had "explained to the children about his finances in
an effort to enlist their aid or to convince them they should not
go to Colorado with their mother." The trial judge clearly
considered and weighed the testimony at trial. That the trial
court addressed the preference issue in the context of discussing
whether Joseph's behavior was manipulative does not suggest that
the trial judge failed to consider the preferences. Rather, it
naturally reflects the manner and context in which the issue was
disputed at trial.
Based on this consideration, the court need not have made
a separate, explicit finding on the issue of the children's
preferences. Doing so would not have assisted that court in making
a proper decision, nor would it have assisted this court in
reviewing the decision on appeal. [Fn. 22] "Mere recital of the
statutory language helps no one."[Fn. 23] This court should not
require the Virgins to endure yet more contentious litigation when
the trial court's findings persuade us that the custody
determination was not in error.
We also disagree with Joseph's contention that the trial
court failed to consider the statutory factor of stability and
continuity. Joseph presented the testimony of his parents at trial
to support his position that the children had bonded with their
relatives in Glennallen. But the paternal grandparents testified
that they lived forty-eight miles away from the Virgins' home in
Glennallen and that their interaction with the children before the
Virgins' separation was primarily limited to some weekends and
birthdays and holidays. In light of the other problems that the
trial judge identified with the children staying in Glennallen with
Joseph, it is not surprising that the trial court did not
specifically mention the children's familial ties to Glennallen in
its findings.
Moreover, Joseph did not dispute testimony tending to
show that the children would have more stability and continuity
with Kathey in Colorado. Indeed, Joseph acknowledged that Kathey
had been the primary caretaker for the children throughout the
course of the marriage. Joseph also admitted at trial that "maybe
there's better schools out there [in Colorado], maybe there's some
horse activities out there or possibly some sport activities like
hockey." Other than his own statements to the children, which the
trial court found to be manipulative, Joseph presented no evidence
to the trial judge that the Colorado move would be detrimental to
the children's stability. To the extent that stability and
continuity are factors in this case, they weigh in favor of the
trial court's decision to grant custody to Kathey and are not a
reason to remand the case for further findings. And stability and
continuity of care for the children certainly will not benefit from
remanding this case and forcing the children to endure further
litigation between their parents.
Joseph's final argument as to why we should remand for
redetermination of custody is that the trial court did not make an
"ultimate finding"that giving sole custody to Kathey was in the
best interests of the children. But in Borchgrevink [Fn. 24] we
noted that such a "wrap-up"finding, though ideal, was not
necessary:
We prefer that superior courts
specifically address the statutory factors detailed in AS
25.24.150(c), and make explicit "ultimate"findings that the best
interests of the children require the custodial disposition
reached. Detailed findings clearly advance the purposes identified
by the dissent. . . . Nevertheless, the findings here were not so
inadequate that they require that the judgment be vacated and the
case remanded.[ [Fn. 25]]
The trial court's findings in Borchgrevink did not contain such
"ultimate"findings on the best interests of the children. [Fn. 26]
The dissent states that it is "uncomfortable"with
"assuming"that the superior court found the children's best
interests supported the award of custody to Kathey. [Fn. 27] But
given the trial court's findings that Joseph was a "domineering
husband and an uncommunicative, obstructive, and angry person,"and
that he was also physically abusive, we need not "assume"anything.
We can logically conclude that the court found that awarding Kathey
custody was in the children's best interests.
Moreover, the dissent's only support for its proposition
that the trial court must make an "ultimate"finding is the
Borchgrevink dissent. [Fn. 28] But, as noted above, the majority
in Borchgrevink stated that it is not necessary to make an explicit
"wrap-up"finding. [Fn. 29] In Borchgrevink we held that, although
the trial court only "implicitly"found that the children's best
interests required their placement with their mother, its findings
were "adequate to reveal its reasoning process."[Fn. 30]
Similarly here, the trial court's findings that Joseph was
"hostile,""obstructive,"and physically abusive are adequate to
reveal its reasoning process. A rule requiring the trial court to
make a wrap-up finding -- in light of such thorough and unequivocal
factual findings -- would unjustifiably elevate form over
substance.
Although the dissent asserts otherwise, its suggestion
that courts memorialize findings on each and every factor
essentially imposes a "tallying"requirement. [Fn. 31] This court
already rejected such a requirement in Julsen when we stated that
custody determinations should not be overturned "merely because a
judge fails to tally the statutory factors like hits, runs, and
errors in a box score."[Fn. 32] We should not depart from the
Julsen decision by requiring a "memorialization"[Fn. 33] of
neutral or irrelevant factors when children's lives are at stake.
The trial judge in this case wrote a thoughtful and well-reasoned
nine-page decision that clearly outlined the reasons for granting
custody to Kathey. Although courts must consider the factors that
are pertinent to the case, they need not make express findings on
all the statutory factors. [Fn. 34] Our duty is to determine
whether the court made a sound decision; not whether it committed
some "technical foul."[Fn. 35] Based on its thorough analysis of
the relevant factors, we conclude that the court made a sound
decision.
Finally, the dissent advocates altering our current
approach [Fn. 36] in favor of a "more rigorous approach."[Fn. 37]
But the dissent's suggestion that we alter our current approach
confirms that this decision comports with our prior case law.
Moreover, searching for errors and remanding any time the trial
court fails to make explicit findings for each factor would not
further children's best interests. As long as the trial court
addresses the "pertinent and potentially determinative factors"
[Fn. 38] and "reveals its reasoning,"[Fn. 39] its findings will be
adequate. We stated in Park that courts will not have erred when
the "substantive information expressed in the findings clearly
indicate[] the steps that the trial court . . . followed, and,
therefore, provide[] an adequate basis for appellate review."[Fn.
40] Our current approach promotes finality and certainty, both of
which are "critical to the child's emotional welfare."[Fn. 41] We
see no reason to depart from our current approach in favor of the
dissenting position in Borchgrevink.
2. Factual findings
Joseph contends that the court abused its discretion by
relying on two clearly erroneous factual findings in making the
custody award: (1) that he had refused to make the house mortgage
payments following entrance of the interim order, and (2) that he
had physically abused Kathey. After reviewing the record, we
conclude that the court did not err; the record supports both
findings.
Both Kathey and Joseph testified that Joseph refused to
make the November house payment following entry of the interim
order on October 28, 1997. There was no evidence to the contrary.
[Fn. 42]
Kathey also testified that Joseph physically abused her;
Joseph's denials do not render the court's finding clearly
erroneous. Trial courts have the discretion to accept the
testimony of one witness over another; [Fn. 43] the court here
reasonably could have chosen to credit Kathey's testimony over
Joseph's.
We therefore affirm the superior court's factual
findings.
E. Visitation
The superior court, accepting Kathey's testimony that she
and the children would move to Colorado following the divorce,
granted Joseph eight weeks of summer visitation and alternate
Christmas and Spring Break vacation periods. It noted, however,
that if Kathey remained in Glennallen, Joseph's visitation should
be "open and reasonable."
We are unpersuaded by Joseph's argument that the
visitation order is too vague to be sustained upon review. [Fn. 44]
The order's only ambiguity relates to the visitation scheme
applicable if Kathey remains in Glennallen. Because it is unlikely
that the parties will have to rely on this provision, its ambiguity
is not fatal. If Kathey stays in Glennallen, Joseph may ask the
superior court to clarify its order.
Joseph also alleges that the court abused its discretion
by failing to consider whether he could pay the children's
transportation costs. We disagree; the court's consideration of
this factor is implicit in its extensive findings of fact regarding
the disparity in the parties' incomes.
F. Division of Marital Property
The court approved of the parties' agreement for dividing
their marital property. Because Kathey was planning to leave
Alaska, the court awarded Joseph possession of the marital home.
But it granted each party a fifty percent share of equity in the
marital home and required Joseph to buy out Kathey's share within
six months of the date of the divorce.
1. Adequacy of factual findings
Joseph alleges that the court failed to consider Joseph's
future needs and his ability to meet those needs when it made the
property division. Joseph's argument is without merit. A trial
court need not make findings on all of the factors relevant to a
property division; it is only required to make factual findings
sufficient to indicate the basis of its division. [Fn. 45] The
court's factual findings indicate that it based its decision on the
following factors: the marriage's length; the parties' earning
abilities; and the parties' respective ages and health. This is
sufficient to support the court's property division.
2. Costs-of-sale deduction
Joseph also contends that the court abused its discretion
by failing to deduct from Kathey's equity share in the marital home
one-half of the costs associated with its sale. The costs of a
sale may be deducted from a spouse's share of an asset if there is
"evidence in the record (1) showing that the party who will receive
the asset intends an imminent sale, and (2) supporting the
estimated costs of sale."[Fn. 46] Joseph did not satisfy this
test.
Joseph testified that if he received the marital home
"[i]t probably should be sold." This evidence does not show that
he intended to sell the marital home or that a sale was "imminent."
Moreover, Joseph does not refer us to any evidence about the costs
of sale. It therefore was not error to deny the deduction.
G. Child Support
1. Joseph's earning capacity
In calculating Joseph's child support obligation, the
superior court set his income at $72,000 and required him to pay
thirty-three percent of that amount, i.e., $1,980 per month.
Joseph argues that the court erred because it failed to
show how it arrived at the $72,000 figure. He contends that the
court should have accepted testimony that his income would decline
substantially in the future. At trial, the operations manager for
Joseph's employer testified that the company intended to reduce
overtime during that year. Joseph implies that overtime
constituted a significant portion of his income in the past.
In determining earning capacity under Alaska Civil Rule
90.3, a trial court has the discretion to choose "the best
indicator of . . . future earning capacity"based on the evidence
before it. [Fn. 47] Joseph does not dispute the court's finding
that his income exceeded $72,000 for the past three years. The
court did not abuse its discretion by relying on evidence of
Joseph's past stream of income; it was not obliged to credit the
speculative testimony of the operations manager and find that
Joseph's income would probably decline.
In addition, Joseph may petition the superior court for
modification of child support if his income later falls below
$72,000 and he cannot meet his support obligations or there is a
change of circumstance satisfying Rule 90.3(h). [Fn. 48]
2. Consideration of Kathey's income
Joseph also alleges that the court failed to calculate
and take into account Kathey's adjusted and gross income when it
made the child support award. This argument is without merit.
When one parent has primary custody, i.e., custody more than
seventy percent of the year, child support is based only on the
non-custodial parent's income. [Fn. 49] Kathey has primary
custody; at most, the children will be in Joseph's custody about
seventeen percent of the year. [Fn. 50]
3. Reduction for visitation expenses
Joseph also argues that, because the visitation order
granted him eight consecutive weeks of visitation, the superior
court should have made specific findings explaining why it did not
reduce his child support payments during his extended summer
visitation. We disagree.
Rule 90.3(a)(3) allows the trial court to "reduce child
support payments up to 50% for any period in which that parent has
extended visitation of over 27 consecutive days." The decision
whether to credit the obligor parent's support obligation for these
expenses lies within the trial court's discretion. [Fn. 51]
Notwithstanding this broad discretion, a trial court should
consider whether to grant a credit when "urged by a party where a
sufficient factual predicate is established."[Fn. 52]
Here, not only did Joseph fail to "urge"the trial court
to grant him a credit pursuant to Rule 90.3(a)(3), he made no
request whatsoever for the credit. He made no mention of the
visitation reduction in either his submissions to the trial court
while the court's determination of child support was still pending
or in his post-trial motions for reconsideration. In fact, his
limited appellate argument on this issue is made only in the
context of his contention that he is unable to pay visitation
transportation expenses: "Requiring Joseph to pay 100% of all
transportation costs with no explanation why it denied reduction of
child support during extended visitation is an abuse of
discretion." Because Joseph raises the issue for the first time on
appeal, we decline to consider it. [Fn. 53]
H. Attorney's Fees and Costs
The superior court awarded Kathey attorney's fees and
costs totaling $8,000. An award of attorney's fees and costs in a
divorce action is to be based on the parties' ability to pay. [Fn.
54] Joseph complains that the superior court failed to consider
the parties' abilities to pay their respective attorney's fees and
costs. We disagree. As discussed above in the context of the
child support award, the trial court made extensive factual
findings regarding the parties' earning capacities. Joseph
presents no evidence from the record that would cause us to doubt
the trial court's findings in this respect. We therefore affirm
the attorney's fees award.
IV. CONCLUSION
We AFFIRM the superior court's interim order and the
entirety of its findings of fact and conclusions of law.
EASTAUGH, Justice, with whom MATTHEWS, Chief Justice, joins,
dissenting in part.
1. INTRODUCTION
Because I disagree with this court's resolution of the
custody issue, I dissent from that portion of its opinion. I would
remand because the record does not establish that the superior
court made the findings the custody statute requires.
2. DISCUSSION
Alaska Statute 25.24.150(c) requires a superior court to
consider eight enumerated factors in determining a child's best
interests before awarding custody. [Fn. 1]
Joseph argues that the superior court failed to consider
two relevant statutory factors, the children's preferences and the
desirability of maintaining stability and continuity in their
lives. He also argues that the superior court did not make an
ultimate finding that it is in the children's best interests that
Kathey, rather than Joseph, be their sole custodian.
This court rejects those arguments. It does so after
carefully reviewing both the record (to determine what statutory
factors the parties disputed at trial) and the superior court's
findings (to determine whether it explicitly or implicitly
addressed particular statutory factors). In light of the issues
and findings thus perceived, this court holds that the custody
award was consistent with the children's best interests. [Fn. 2]
I disagree with that approach for three reasons. First,
it does not satisfy AS 25.24.150(c) and Alaska Civil Rule 52(a).
Second, it rests on an implicit, but inappropriate, appellate
assumption that the superior court either correctly resolved
disputes about the two factors or determined that the factors were
irrelevant. Important policy considerations should preclude such
deferential treatment of custody awards. Third, even under the
approach the court takes here, the facts require remand.
a. Explicit Findings Are Needed to Satisfy Statute and Rule.
Alaska Statute 25.24.150(c) imposes two mandatory duties
on the superior court. It "shall determine custody in accordance
with the best interests of the child"; and in determining the
child's best interests, it "shall consider"eight enumerated
factors. [Fn. 3] Because such cases are tried without juries, our
procedural rules require a trial court to "find the facts specially
and state separately its conclusions of law thereon."[Fn. 4]
The statute mandates a two-part analysis. First, the
trial court must find the extent to which each relevant statutory
factor favors one parent or the other. Making these findings
necessarily requires the trial court to determine the relevance of
each statutory factor. Second, the trial court must weigh the
relevant factors and make a best-interests finding before awarding
custody.
The statute does not state that the trial court must
memorialize its analysis and findings at each step. But because
the trial court can satisfy the statute only by making findings of
fact and conclusions of law, Civil Rule 52(a) effectively imposes
a memorialization requirement because it demands that the trial
court "find the facts specially"and "state separately"its legal
conclusions. [Fn. 5] I believe that this demand requires trial
courts to memorialize their custody findings and conclusions in
writing or by minute order recorded electronically.
As Chief Justice Matthews observed in his dissent in
Borchgrevink v. Borchgrevink, [Fn. 6] the statute and rule
collectively require the trial court to make both "integrative"
findings and an "ultimate"finding. [Fn. 7] Chief Justice Matthews
there identified four purposes served by a requirement that trial
courts make findings in judge-tried cases. "This requirement (1)
'aids the trial judge's analytical process'; (2) 'may be relevant
for collateral estoppel purposes'; (3) 'aids the appellate court on
review'; and (4) enables 'the defeated party to determine whether
the case presents a question worthy of consideration by the
appellate court.'"[Fn. 8] To these I would add that proper
findings set a baseline of circumstances that permit comparison
when the noncustodial parent claims that changed circumstances
justify a change in custody.
For these and other reasons, I am now convinced that the
statute can best be satisfied by requiring expressly memorialized
findings and conclusions after the trial court determines the
relevant statutory factors, resolves disputes concerning those
factors, and makes the ultimate best-interests finding by weighing
those factors.
The court argues that such a requirement would elevate
form over substance. [Fn. 9] And not long ago the court noted in
dicta, "[w]e do not believe custody determinations should be
overturned merely because a judge fails to tally the statutory
factors like runs, hits and errors in a box score."[Fn. 10] But
I do not regard a requirement originating in this statute to be a
mere formalism. Because a custody dispute is decidedly not a
sporting event, because an appellate court cannot tally hits, runs,
and errors, and because the best-interests determination ultimately
turns on a complex weighing of statutory factors having unequal
values in a given case, the trial court must explain what it did
and how it did it.
Requiring a memorialization would demand nothing more
than Civil Rule 52(a) now requires. Given this court's presumption
that the trial court has engaged in the analysis the statute
demands, memorialization will add little extra time or effort. If
this court's presumption is incorrect, the memorialization
requirement will encourage the proper statutory analysis. The
trial court can easily preserve its findings in an oral minute
order. The benefits will far outweigh any additional burden.
In light of the statute and Rule 52(a), I conclude that
we should alter our current approach in reviewing such cases. It
is one thing to review an appellate record to determine whether the
superior court has made the appropriate findings where none appear
there plainly. [Fn. 11] But we should no longer sift through
appellate records to determine which statutory factors seem to have
been irrelevant in particular cases and which factors the parties
have chosen not to dispute. [Fn. 12] Nor should we attempt to
discern from the record whether particular findings were meant to
dispose of statutory factors the trial court failed to discuss
explicitly. [Fn. 13] Our current practice does not remedy a
failure to make findings and memorialize them in the record. It
does not satisfy the first, second, and fourth purposes Chief
Justice Matthews identified in Borchgrevink. [Fn. 14] Even as to
the third purpose, careful scrutiny of the record is a poor
substitute for the assistance that express findings would provide
during appellate review. A trial court's failure to memorialize
its reasoning and findings gravely impedes appellate review and
impairs its accuracy. And if a change of circumstances is alleged,
reconstructing the circumstances the trial court originally
considered when it first awarded custody is neither effective nor
efficient.
B. The Drawbacks of Our Current Approach Outweigh Any
Possible Benefits.
This brings me to my second concern. We are a court of
review. We do not try or retry fact disputes committed to the
trial court. To review custody awards on appeal, we need to know
how the trial court ruled. When the trial court fails to address
a statutory factor, is it because the court thought that factor
irrelevant or because the court simply overlooked it? When the
trial court awards custody without making an ultimate best-
interests finding, has it applied the correct statutory standard?
Has it weighed any factors not mentioned in its findings? If a
factor is relevant and in dispute, did the trial court consider it
in deciding the children's best interests when there is no
indication what it considered? When the record is silent or
ambiguous as to a given factor, this court's approach necessarily
rests on an assumption of regularity, i.e., an assumption that the
superior court did not overlook any factors and awarded custody
based on the children's best interests.
In my view, it is not enough that it seems probable in a
given case that the trial court reached a permissible result,
because there can be more than one permissible result. And the
outcome may hinge on a factor the trial court may have overlooked.
When the trial court does not say what it did, we should not have
to assume that it applied the correct statutory analysis and made
a best-interests determination. Nor should the parties. A more
rigorous approach will reassure parties (and appellate jurists)
that the trial court engaged in the right analysis.
This reassurance should not be lightly ignored. It is
important that the losing party have confidence that the trial
court resolved the dispute on its merits, engaged in the right
analytical process, and overlooked no relevant statutory factors.
If the trial court makes no memorialized findings on specific
factors or makes no memorialized best-interests finding, and does
not explain why it does not, the losing party can fairly wonder
whether justice was done. That party is not likely to be reassured
by an appellate process that assumes that the trial court followed
the correct process even though it is not clear what process the
trial court followed.
This raises the related problem of possible appellate
inaccuracy. I think that it is not adequate for us to resolve
silence or ambiguity by scrutinizing the parties' trial court
arguments. There are two reasons. First, the children themselves
are rarely represented, and the parents' needs may not align with
their children's best interests. The parents' failure to address
pertinent factors cannot excuse a superior court's failure to
consider those factors. Second, rarely is the record so
unambiguous that we can definitively determine that the parents
waived particular factors. Testimony and argument about custody
often do not clearly separate one factor from another. Cases
involving pro se parents are even more problematic because they are
more likely to overlook relevant factors. Consequently, appellate
records are often sufficiently unclear that reasonable jurists can
permissibly draw different conclusions about the evidence, the
parties' arguments, and what the trial court intended. Our
approach, therefore, may cause us to draw inaccurate conclusions
that do not reflect what the trial court really did.
Policy reasons should also foreclose our willingness to
review the record to reconstruct the superior court's analysis.
Our approach adversely affects the finality of custody awards by
encouraging appeals on the avoidable issue of the adequacy of the
findings. It increases litigation costs by creating avoidable
appellate issues and exposes the parties to the expense and delay
of remand if findings prove insufficient. [Fn. 15] It decreases
predictability because the appellate result turns on what a
majority of this court, after examining the record, decides the
trial court meant to do absent memorialized findings. It adversely
affects consideration of custody modification motions because the
baseline circumstances may have to be reconstructed. And if we
misinterpret the record, and remand for a different result, we may
interfere with what might have been an allowable exercise of trial
court discretion.
It also interferes with resolving custody disputes
expeditiously. Appeals in these cases are especially time-
consuming, because our approach encourages each justice to engage
in a fact-intensive review of the record, and often provokes
separate opinions. Separate opinions were issued in Park v. Park,
[Fn. 16] Duffus v. Duffus, [Fn. 17] and Borchgrevink. [Fn. 18]
The resulting delays harm the parties. And the time
individual justices spend reviewing the records in these cases
trying to determine what the trial court must have intended delays
our consideration of other worthwhile, but nonexpedited, appeals.
For these reasons, I feel parties will be better served
if we follow the approach Chief Justice Matthews advocated in
Borchgrevink and further require the trial court to memorialize its
findings.
C. Even under the Current Approach, this Custody Dispute
Should Be Remanded.
But even under the approach the court follows here, I
think remand is necessary. First, the superior court did not
address the children's preferences although two children were
arguably old enough to express preferences. The court seems to
interpret the superior court's comments to indicate that it may
have reasoned that the children's preferences would not have been
reliable. [Fn. 19] But that interpretation supposes that the
superior court actually made an unreliability determination when it
did not. This court also reasons that the issue was not really
disputed at trial anyway. [Fn. 20] Given the statutory mandate, I
am not convinced that a failure of the parents to raise the
preference issue should be determinative. But in any event, the
issue was sufficiently raised here that the superior court should
have memorialized any such findings. At least the trial court
should have stated that the factor was not relevant, or that the
children's preferences would have been unreliable, if that is what
it indeed found.
This court also reads the record to suggest that the
statutory stability and continuity factor was not in real dispute,
and that in any event the evidence on this factor favored Kathey.
[Fn. 21] But the initial relevance determination is best made by
the trial court because it is most familiar with the evidence and
the parties' arguments. Imposing that duty aids the analytical
process that the trial court must follow anyway. Likewise, it is
for the trial court to make findings about the evidence, and I do
not feel comfortable reasoning that the facts could only be read to
favor Kathey on this issue.
I am also uncomfortable with assuming that the disputed
factors favored Kathey and that the other factors were at best
neutral, and that the superior court must have found the children's
best interests before awarding Kathey custody. [Fn. 22] It is
circular to reason that the court applied the right analysis
because the factors justified the award made. If only one outcome
were possible, perhaps that would be an appropriate way to reason.
But even if all factors but one favor one parent, in a given case
that one factor may outweigh the others.
3. CONCLUSION
The court has engaged in an admirable but time-consuming
attempt to determine whether the superior court conducted the
analysis the legislature requires. I think it illustrates why we
must change the way we review such disputes. But even applying the
approach we have followed in the recent past, I would reverse and
remand the custody issue in this case for consideration of the
preference and continuity factors and for memorialization of the
necessary findings.
FOOTNOTES
Footnote 1:
See Johnson v. Johnson, 836 P.2d 930, 933 (Alaska 1992);
Burrell v. Burrell, 537 P.2d 1, 7 (Alaska 1975).
Footnote 2:
See Ulsher v. Ulsher, 867 P.2d 819, 821 (Alaska 1994).
Footnote 3:
See Monette v. Hoff, 958 P.2d 434, 436-37 (Alaska 1998);
Vachon v. Pugliese, 931 P.2d 371, 375 (Alaska 1996); J.F.E. v.
J.A.S., 930 P.2d 409, 411 (Alaska 1996).
Footnote 4:
See Lewis v. Lewis, 785 P.2d 550, 552 (Alaska 1990).
Footnote 5:
See Burrell, 537 P.2d at 7.
Footnote 6:
See Vachon, 931 P.2d at 375.
Footnote 7:
See Kowalski v. Kowalski, 806 P.2d 1368, 1370 (Alaska 1991).
Footnote 8:
See Alaska R. Civ. P. 52(a) (requiring trial courts to make
findings in support of their decisions in non-jury cases); 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 [child custody] 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"); Bird v. Starkey, 914 P.2d 1246, 1249
(Alaska 1996) (requiring trial court to explain its reasoning only
"where those reasons are not apparent from the record"); Johnson,
836 P.2d at 934-35 (remanding interim spousal maintenance order
because record contained no findings in support of order).
Footnote 9:
The trial court noted that during their marriage, Joseph
earned most of the family's income, earning an average of $92,328
per year from 1995 to 1997. In contrast, Kathey cared for the home
and the children; she worked occasionally as a substitute teacher
and teacher's aide, earning an average of $3,992 per year from 1995
to 1997.
Footnote 10:
Myers v. Myers, 927 P.2d 326, 328 (Alaska 1996).
Footnote 11:
Kathey testified that she intended to move with the children
to Fort Collins following the divorce.
Footnote 12:
See Part III.F.2.
Footnote 13:
Bird v. Starkey, 914 P.2d 1246, 1249 n.4 (Alaska 1996).
Footnote 14:
Park v. Park, ___ P.2d ___, Op. No. 5171, 1999 WL 692446, at
*2 (Alaska, September 3, 1999).
Footnote 15:
Julsen v. Julsen, 741 P.2d 642, 649 n.10 (Alaska 1987).
Footnote 16:
The dissent similarly argues that the trial court abused its
discretion by not explicitly addressing these factors. See Dissent
at 24.
Footnote 17:
See Park, Op. No. 5171, 1999 WL 692446, at *2 (stating that
"[w]hile 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"); Borchgrevink v. Borchgrevink,
941 P.2d 132, 137-39 (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); 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 18:
Park, Op. No. 5171, 1999 WL 692446, at *2 (citing
Borchgrevink, 941 P.2d at 138-39).
Footnote 19:
Id. (citing Borchgrevink at 139-140, Duffus, 932 P.2d at 779).
Footnote 20:
Dissent at 25.
Footnote 21:
Borchgrevink at 138.
Footnote 22:
See McDanold v. McDanold, 718 P.2d 467, 470 (Alaska 1986)
("Facts which are either uncontested or irrelevant would not assist
this court in assessing the propriety of an award.").
Footnote 23:
Id.
Footnote 24:
941 P.2d 132.
Footnote 25:
Id. at 139-40.
Footnote 26:
See id. at 135-37. The Borchgrevink trial court's only
explicit reference to the best interests of the children was in its
findings of fact, and then only to make the general point that the
best interests of the children require that one parent have legal
and physical custody subject to liberal visitation by the non-
custodial parent. See id. at 136.
Footnote 27:
Dissent at 33.
Footnote 28:
Dissent at 26.
Footnote 29:
941 P.2d at 137.
Footnote 30:
Id.
Footnote 31:
Dissent at 27.
Footnote 32:
Julsen, 741 P.2d at 649 n.10.
Footnote 33:
Dissent at 27.
Footnote 34:
See Julsen, 741 P.2d at 649 n.10.
Footnote 35:
Id.
Footnote 36:
See Dissent at 28.
Footnote 37:
Dissent at 29.
Footnote 38:
Borchgrevink, 941 P.2d at 138; see also Julsen, 741 P.2d at
649 n.10.
Footnote 39:
Borchgrevink, 941 P.2d at 137; see also Duffus, 932 P.2d at
779.
Footnote 40:
Park, Op. No. 5171, 1999 WL 692446, at *6.
Footnote 41:
Gratrix v. Gratrix, 652 P.2d 76, 82-83 (Alaska 1982).
Footnote 42:
The fact that Joseph later reimbursed Kathey for the November
house payment does not contradict the court's finding.
Footnote 43:
See Davila v. Davila, 876 P.2d 1089, 1092 (Alaska 1994)
(quoting Parker v. Northern Mixing Co., 756 P.2d 881, 892 (Alaska
1988)) ("[I]t is the function of the trial court, not of this
court, to judge witnesses' credibility and to weigh conflicting
evidence.").
Footnote 44:
See Long v. Long, 816 P.2d 145, 157 (Alaska 1991) (holding
that "uncertainty [regarding amount of visitation ordered] is fatal
to the validity of [a trial] court's visitation . . . award[]").
Footnote 45:
See Burcell v. Burcell, 713 P.2d 802, 805 (Alaska 1986).
Footnote 46:
McDaniel v. McDaniel, 829 P.2d 303, 307 (Alaska 1992).
Footnote 47:
Coghill v. Coghill, 836 P.2d 921, 926 (Alaska 1992).
Footnote 48:
See Kowalski v. Kowalski, 806 P.2d 1368, 1372 n.6 (Alaska
1991).
Footnote 49:
See Alaska R. Civ. P. 90.3(a).
Footnote 50:
Assuming Kathey moves to Colorado, the children will visit
with Joseph eight weeks each summer and alternate Christmas and
Spring Break vacation periods. At a maximum, visitation will be
nine weeks a year.
Footnote 51:
See Renfro v. Renfro, 848 P.2d 830, 832 (Alaska 1993); see
also Alaska R. Civ. P. 90.3 cmt. IV.B.
Footnote 52:
Renfro, 848 P.2d at 832.
Footnote 53:
See Von Stauffenberg v. Committee for an Honest & Ethical Sch.
Bd., 903 P.2d 1055, 1061 (Alaska 1995).
Footnote 54:
See Burrell v. Burrell, 537 P.2d 1, 7 (Alaska 1975).
FOOTNOTES (Dissent)
Footnote 1:
AS 25.24.150(c) (1998) provides:
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.
Footnote 2:
See Op. at 13.
Footnote 3:
See AS 25.24.150(c).
Footnote 4:
Alaska R. Civ. P. 52(a).
Footnote 5:
See Alaska R. Civ. P. 52(a).
Footnote 6:
Borchgrevink v. Borchgrevink, 941 P.2d 132 (Alaska 1997).
Footnote 7:
See id. at 142. I authored the court's opinion from which
Chief Justice Matthews dissented. But our opinion in Borchgrevink
did not reject his reasoning concerning the purposes of integrative
and ultimate findings. It instead concluded that those purposes
had been served in that case, that the superior court had
considered the relevant factors, and that its integrative findings
were sufficient. Id. at 141.
Footnote 8:
Id. at 142 (Matthews, J., dissenting) (quoting In re D.C., 715
P.2d 1 (Alaska 1986); Merrill v. Merrill, 368 P.2d 546 (Alaska
1962); Rogge v. Weaver, 368 P.2d 810, 814 n.7 (Alaska 1962)).
Footnote 9:
See Op. at 13.
Footnote 10:
Julsen v. Julsen, 741 P.2d 642, 649 n.10 (Alaska 1987).
Footnote 11:
See, e.g., Duffus v. Duffus, 932 P.2d 777, 779-80 (Alaska
1997).
Footnote 12:
See Borchgrevink, 941 P.2d at 140-41.
Footnote 13:
See Park v. Park, __ P.2d __, Op. No. 5171 at 8, 1999 WL
692446, at *2 (Alaska, September 3, 1999).
Footnote 14:
See Borchgrevink, 941 P.2d at 142.
Footnote 15:
See Park, Op. No. 5171 at 17, 1999 WL 692446, at *7.
Footnote 16:
Op. No. 5171 at 18, 1999 WL 692446, at *7.
Footnote 17:
932 P.2d at 781.
Footnote 18:
941 P.2d at 141.
Footnote 19:
See Op. at 8-10.
Footnote 20:
See Op. at 8-9.
Footnote 21:
See Op. at 11-12.
Footnote 22:
See Op. at 12-13.
