Alaska Supreme Court Opinions made Available by Touch N' Go Systems and Bright Solutions

Touch N' Go®, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website.
  This site is possible because of the following site sponsors. Please support them with your business.

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Pearson v. Pearson (7/7/2000) sp-5297

Pearson v. Pearson (7/7/2000) sp-5297

     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.


MARK S. PEARSON,              )
                              )    Supreme Court No. S-8973
             Appellant,       )
                              )    Superior Court No.
     v.                       )    3KN-97-165 CI
SARA B. PEARSON,              )    O P I N I O N
             Appellee.        )    [No. 5297 - July 7, 2000]

          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Kenai,
                     Harold M. Brown, Judge.

          Appearances: Mark S. Pearson, pro se,
Soldotna, Appellant.  Kristine A. Schmidt, Kenai, for Appellee.

          Before:  Matthews, Chief Justice, Eastaugh,
Fabe, Bryner, and Carpeneti, Justices.  

          PER CURIAM.

          When Mark and Sara Pearson were divorced, they agreed
that Sara would have legal and primary physical custody of their
two children.  Nine months later, Sara moved from Soldotna to
Pennsylvania, and Mark sought modification of the custody
arrangement.  Although Mark alleged that Sara's decision to move
was prompted by her wish to deprive Mark of contact with the
children, the trial court found no such motivation and ordered that
Sara retain legal and physical custody of the children.  Because
the trial court did not err in its determination that it was in the
best interests of the children to remain with Sara, we affirm.
          Mark and Sara Pearson divorced on April 11, 1997.  In
granting the divorce, Superior Court Judge Harold M. Brown
incorporated the couple's agreement regarding custody matters.  The
agreement called for Sara to have legal and primary physical
custody of the parties' daughter, Jamie, and son, Jonathan.  Mark
was to have visitation for three weekends a month.  The parties
followed this custody schedule until January 1998, when Sara moved
with her children to Pennsylvania to be with her fianc‚, Paul
          After Sara's move, Mark filed a motion to modify custody,
contending that Sara's move constituted a "substantial change in
circumstances."  He also requested that the court appoint a child
custody investigator.  Sara opposed both motions and asked the
court to revise the visitation schedule in light of her move and
her inability to reach an agreement with Mark on a revised
schedule.  The superior court scheduled an evidentiary hearing for
April 30, 1998 to review the best interests of the children and
denied Mark's request for a custody investigator.
          At the April 30 hearing, Mark announced his intention to
move to Pennsylvania in order to live closer to his children, but
he made no concrete plans.  Due to the changed circumstances, the
court determined that "legal custody . . . is on the table." 
Because legal custody was at issue, Sara's counsel expressed her
desire to present witnesses to rebut Mark's request to obtain
custody.  The court heard Sara's testimony but did not make a
decision regarding custody because Sara was unable to complete her
testimony.  The court ordered four weeks of summer visitation for
Mark and continued the hearing, which eventually took place on July
          Mark moved to Pennsylvania in June.  Mark's presence in
Pennsylvania caused a great deal of conflict.  Sara was suspicious
of Mark's intentions.  During one visit between Mark and the
children, Sara called the hotel where she believed Mark was
staying.  When she learned that he had checked out, she panicked
and called the police, believing that Mark had abducted the
children.  Although Mark had simply checked into a different hotel,
this incident was indicative of the fact that he did not foster a
cooperative relationship with his ex-wife.  Mark refused to speak
with Sara and made it difficult for her to contact the children
when they were visiting him.
          Sara moved to dismiss the motion for modification on the
ground that Mark's move to Pennsylvania made his "changed
circumstances" argument moot.  In response, Mark filed a motion two
days before the July 2 hearing stating that he intended to move
back to Alaska and would seek legal and primary physical custody. 
He also stated that he wanted to present the testimony of an expert
witness, Dr. Monty Weinstein, to support his arguments.
          At the July 2, 1998 hearing, Judge Brown determined that
it was still appropriate to reexamine the question of legal and
physical custody.  But the court believed it would be prejudicial
to Sara to do so on that day because of Mark's sudden decision to
move back to Alaska and the impact that his decision would have had
on the proceedings.  Accordingly, the court rescheduled a custody
hearing which eventually took place on August 13, 1998, after
Mark's permanent return to Alaska.  The court indicated that it
would allow Dr. Weinstein to testify at that hearing.  Despite the
fact that the court had previously denied Mark's request for a
custody investigator, the court explained that an investigator was
not necessary because neither parent alleged that the other was
          Mark did return to Alaska, and the children visited him
and the extended family.  The visit was not without conflict,
however, because Mark and his parents made it difficult for her to
contact him or the children.
          At the August 13 hearing, the court heard the testimony
of Dr. Mark King on behalf of Sara and Dr. Weinstein on behalf of
Mark.  Dr. King testified that the children were doing well in the
custody of their mother and that the reasons to alter the current
arrangement would have to be compelling.  Dr. Weinstein testified
that the children had a loving relationship with their father. 
Although Dr. Weinstein had only observed Sara interacting with the
children on one brief occasion, he concluded that she was trying to
alienate the children from their father.  After hearing the experts
and Sara testify, the court continued the hearing until September
24.  At that hearing, the remaining witnesses, Mark and members of
Sara's and Mark's families, had an opportunity to testify.
          The superior court issued its decision on October 2,
1998.  In determining whether custody should be modified, the court
considered the factors prescribed by AS 25.24.150(c).  The court
found that both parents were capable of acting as primary physical
custodians and saw no evidence of any abuse or neglect.  The court
focused its analysis on the benefits to the children of remaining
with their mother and both parents' ability to foster a
relationship with the other parent. [Fn. 1]  Because the court
found that Sara had been a capable primary custodian, it concluded
that a modification of custody could prove to be damaging to the
children.  The court also found that Sara was the parent most
likely to facilitate a relationship with the other parent.
          Although Mark argued that it was in the children's best
interest to have regular contact with their extended family living
in Alaska, Judge Brown concluded that the desirability of
maintaining the children in their present stable environment
outweighed the advantage of such contact with extended family.
          The court did not modify legal or primary physical
custody but did modify the visitation schedule to account for the
change in circumstances.
          This court will reverse a lower court's decision
regarding child custody modification only if the lower court abuses
its discretion or if its controlling factual findings are clearly
erroneous. [Fn. 2]  A trial court abuses its discretion if it fails
to consider factors mandated by AS 25.24.150, assigns too much
weight to some of the factors, or considers improper factors. [Fn.
3]  This court reviews the trial court's factual findings under the
clearly erroneous standard. [Fn. 4] 
     A.   The Trial Court Did Not Err When It Denied Mark's 
          Request for a Child Custody Investigator.

          Mark argues that the trial court erred when it refused
his request for a custody investigation.  But the judge has
discretion whether or not to appoint a custody investigator, [Fn.
5] and Mark has failed to explain how that discretion was abused. 
The trial court did not order a custody investigation because
neither parent alleged the other was an unfit parent.  Moreover,
the trial court conducted several detailed hearings to determine
the best interests of the children and heard from two expert
witnesses.  We conclude that the trial court did not abuse its
discretion when it denied Mark's request for a custody
     B.   The Trial Court Did Not Err in Concluding That Sara's
Continuing Custody of the Children Was in Their Best Interests.

          A custodial parent's decision to leave the state is a
material change in circumstances justifying a hearing to consider
the best interests of the children. [Fn. 6]  The trial court held
such a hearing in this case and appropriately reexamined the best
interests of the children.  The court considered all the factors
prescribed by AS 25.24.150(c) [Fn. 7] but focused its analysis on
the questions of which parent was more likely to facilitate a
relationship with the other parent and which environment would be
more stable for the children. [Fn. 8]  Mark alleges that Sara has
initiated a campaign to alienate him and his family from the
children by moving the children out of Alaska and argues that the
children's best interests require that the court award him custody.
          1.   The trial court did not err in finding that Sara
was not trying to alienate Mark from their children's lives.
          The trial court concluded that Sara is "the parent most
capable of allowing an open and loving relationship with the
other."  But Mark argues that the trial court erred when it
concluded that Sara was not trying to alienate him from their
children's lives.
          To support his argument, Mark asserts that the trial
court erroneously disregarded the evidence he presented regarding
parental alienation syndrome.  He cites a long list of cases from
states and Canadian provinces sustaining decisions to admit
evidence of the syndrome.  But this authority is not relevant
because the trial court did admit Mark's proffered evidence. 
Instead, we read Mark's argument as a challenge to the trial
court's factual conclusion that the children did not suffer from
parental alienation syndrome.
          The trial court's findings regarding parental alienation
syndrome are not clearly erroneous.  Although the syndrome is not
universally accepted, the trial court heard evidence from two
experts, Dr. Weinstein and Dr. King, who both believe that it may
occur.  But the experts disagreed as to whether the syndrome was
present in this case.  The trial court analyzed both experts'
testimony, concluding that Dr. King based his testimony on more
objective observations and was more helpful to the court.  Because
"[a]ssessment of witness credibility is left to the discretion of
the superior court," [Fn. 9] we will not overturn the trial court's
conclusion that Sara was not deliberately alienating Mark and his
          Moreover, the court concluded not only that Sara was not
attempting to alienate Mark, but that she was the parent most
capable of facilitating a loving relationship with the other
parent.  In making this finding, the trial court referred to the
testimony that Mark and his family made it difficult for Sara to
contact the children when they were with him.  Mark has given us no
basis for concluding that the trial court committed a clear error
when it found that Sara was the parent more capable of fostering a
loving relationship with the non-custodial parent.
          Mark also argues that Sara did not have a legitimate
reason for moving to Pennsylvania and that her improper motivation
is conclusive evidence that she is attempting to alienate him from
their children.  But in this case the trial court explicitly found
that "there is absolutely no evidence in the record that [Sara]
moved to Pennsylvania to deprive [Mark] of his right to
visitation."  Moreover, Mark's argument is not supported by our
prior decisions.  When the trial court conducts a custody hearing
as a result of a parent's move, it should consider all the criteria
in AS 25.24.150(c). [Fn. 10]  But "whether there is a legitimate
reason for the move" is just one factor in the best interest
analysis. [Fn. 11]  In light of the trial court's specific finding
regarding Sara's motivation, we conclude that the trial court gave
appropriate consideration to that factor. [Fn. 12] 
          2.   The trial court did not err in concluding that the
children's interest in remaining in a stable environment favored
continuing Sara's custody. 

          The trial court also found that because Sara had been the
primary caregiver for the children throughout their lives, the goal
of maintaining stability was best served by allowing Sara to retain
custody.  But Mark argues that Sara removed the children from their
stable environment in Alaska by moving them to Pennsylvania.  The
trial court, on the other hand, found that the children were in a
stable environment despite the move.  The court concluded that the
countervailing interest of being close to extended family "pales in
significance when compared to the desirability of maintaining
continuity for these children in their present stable environment." 
And our prior decisions establish that "stability is often a
function of parental attitude and not of geography." [Fn. 13] 
Therefore, it was not error for the trial court to conclude that
the children's interest in a stable, continuous environment favored
their remaining with Sara.
          The trial court found that the children's best interests
required that they remain with Sara.  Because we uphold the trial
court's factual findings, and they favor Sara's retaining custody
of the children, we conclude that the trial court did not abuse its
discretion when it allowed Sara to retain custody.
     C.   Mark's Other Claims of Error Do Not Warrant Reversal.

          Mark argues that the trial court exhibited gender bias
toward him.  He cites as proof of the alleged bias the trial
court's finding that Sara's expert was more credible than his
expert.  But the trial court listed its reasons for finding Dr.
King more credible than Dr. Weinstein:  Dr. King provided a well-
reasoned written report, assumed in his analysis that Mark was a
capable parent rather than making judgments about a person he had
not observed, and administered objective psychological tests.  The
record simply does not demonstrate any evidence of gender bias. 
Indeed, we commend the trial court for its handling of this matter. 
The trial court offered both parties every procedural protection in
considering the custody modification, including a thorough
evidentiary hearing, the opportunity to present the testimony of
experts, and a prompt decision following the hearing.  We conclude
that the trial court gave careful consideration to all issues
before it and that the court's willingness to ensure that all
viewpoints were heard was exemplary.
          Mark also claims that the court erred in allowing Sara's
fianc‚, Paul Pozonsky, to sit at the counsel table during the
August 13 hearing because his presence influenced the proceedings.
[Fn. 14] But the only time Pozonsky spoke was to confirm his
identity.  Mark cites no evidence that Pozonsky's presence altered
or prejudiced the proceeding.  The trial court did not abuse its
discretion when it allowed Sara's fianc‚ to sit at the counsel
table for moral support in the custody proceeding. 
          The trial court did not err when it made the factual
determinations underlying its "best interests of the child"
analysis.  The court also adequately considered the relevant
factors in evaluating children's best interests.  Accordingly, it
was not an abuse of discretion for the court to allow Sara to
retain legal and primary physical custody.  We therefore AFFIRM.


Footnote 1:

     See AS 25.24.150(c)(5)-(6).

Footnote 2:

     See Horutz v. Horutz, 560 P.2d 397, 399 (Alaska 1977).

Footnote 3:

     See Kessler v. Kessler, 827 P.2d 1119, 1119 (Alaska 1992) (per

Footnote 4:

     See West v. Lawson, 951 P.2d 1200, 1203 (Alaska 1998).

Footnote 5:

     Cf. Lacy v. Lacy, 553 P.2d 928, 930 (Alaska 1976) (court has
discretion to decide whether or not to appoint a guardian ad

Footnote 6:

     See House v. House, 779 P.2d 1204, 1207-08 (Alaska 1989).

Footnote 7:

     Mark complains that the trial court ignored evidence of
domestic violence.  But the court heard testimony from both Sara's
and Mark's perspectives regarding the alleged incident of domestic
violence, and it explicitly found that "there is no evidence of
domestic violence, child abuse or child neglect" by either party.
Because we defer to the trial court's evaluation of witness
credibility, see Monette v. Hoff, 958 P.2d 434, 436 (Alaska 1998),
we conclude that the trial court's finding was not clearly

Footnote 8:

     See AS 25.24.150(c)(5)-(6).

Footnote 9:

     Monette, 958 P.2d at 436.

Footnote 10:

     See McQuade v. McQuade, 901 P.2d 421, 424 (Alaska 1995).

Footnote 11:

     Id. (citing Lee v. Cox, 790 P.2d 1359, 1361 n.5 (Alaska

Footnote 12:

     Mark also argues that because Sara moved to Pennsylvania to be
with a married man that the court has "rewarded [her] for doing
something negative."  But the fact "that a mother is living with
another man in an adulterous relationship does not justify denying
her custody absent any indication of adverse effects on the child." 
S.N.E. v. R.L.B., 699 P.2d 875, 878 (Alaska 1985).  And the trial
court found no evidence that Sara's relationship is having a
harmful effect on the children.

Footnote 13:

     McQuade, 901 P.2d at 426 (quoting Craig v. McBride, 639 P.2d
303, 308 (Alaska 1982) (Rabinowitz, C.J., concurring)). 

Footnote 14:

     Pozonsky is a judge in a family court in Pennsylvania.