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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Hamilton v. Hamilton (03/08/2002) sp-5546

Hamilton v. Hamilton (03/08/2002) sp-5546

     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.


PHYLLIS HAMILTON,                       )
                              )    Supreme Court No. S-9826
             Appellant,                 )
                              )    Superior Court No.
     v.                       )    1PE-97-26 CI
JOHN HAMILTON, IV,                      )    O P I N I O N
             Appellee.                  )    [No. 5546 - March 8,

          Appeal  from the Superior Court of the  State
          of    Alaska,   First   Judicial    District,
          Petersburg, Michael A. Thompson, Judge.

          Appearances:   Alan  J.  Hooper  and   Gloria
          Hanssen  Hooper, Hooper & Hanssen, Fairbanks,
          for Appellant.  Paul H. Grant, Law Office  of
          Paul H. Grant, Juneau, for Appellee.

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

          CARPENETI, Justice.


          I.   Phyllis and John Hamilton were divorced in 1999 after

nearly  nine years of marriage.  They agreed that Phyllis  should

be  awarded primary physical custody of their  two sons,  Francis

and   Ian.   Because  of  problems  communicating  with   Phyllis

regarding his visitation rights and Phylliss move with  the  boys

to  Tacoma, Washington, John filed a motion to modify the custody

arrangement.   After  a trial, Superior Court  Judge  Michael  A.

Thompson  found  that a transfer of primary physical  custody  to

John  was  in  the  childrens  best interests  due  primarily  to

Phylliss  inability  to foster an open relationship  between  the

boys  and  John  when they were in her custody.  Phyllis  appeals

that  determination.   Because the trial court  did  not  err  in

making  its  factual findings nor did it abuse its discretion  in

awarding custody, we affirm the trial courts award of custody  to



          Phyllis  and  John began dating in 1990  and  moved  in

together  in late spring 1991.  Their first son, Francis  (Frank)

was born on June 28, 1991.  They married that November.  On April

30,  1993,  their second son, Ian, was born.  Also  in  1993  the

Hamilton  family  moved to Petersburg so that  John  could  begin

working with the Petersburg Police Department.

          After  considering separation several times, John moved

out of the house on May 1, 1997 and filed a complaint for divorce

later that month.  Phyllis moved with the boys from Petersburg to

Juneau  when  she  obtained a job with the  state.   Negotiations

between Phyllis and John culminated in a property settlement  and

child  custody agreement filed on February 22, 1999.  The  decree

of divorce was entered on March 25, 1999.

          John and Phyllis were given joint legal custody of  the

children,  with  primary physical custody in Phyllis.   John  was

given  visitation  during Thanksgiving,  winter  holiday,  spring

break,  and  summer  vacation.   In  addition,  John  was   given

visitation  rights if he is in Juneau, provided it is  reasonable

and  does  not  interfere with pre-planned activities  or  school

attendance,  and  may  have  the boys  travel  to  visit  him  in

Petersburg for up to five weekends during the school year, at his


          The  agreement also gave each parent the right to  make

decisions  regarding day-to-day care and control of the  children

when  the  children  are  residing with that  parent,  but  major

decisions  regarding education, medical care,  and  socialization

were to be made jointly.  John and Phyllis agreed to a good faith

requirement  to use their best efforts to comply with  statements

of   principle   relating   to   their   parenting   rights   and

responsibilities, including working together on providing a sound

moral,   socioeconomic,  and  educational  environment  for   the

children; promoting the relationship between the children and the

other parent; and supporting the other parents lifestyle in front

of the children.

          In  October 1999 John filed a motion and memorandum  to

enforce visitation and for sanctions against Phyllis.  He claimed

that  Phyllis  had twice violated the child custody agreement  by

not  allowing  him  to visit the boys when he was  in  Juneau  on

business.   Phyllis, now acting pro se, requested  a  continuance

for her response to Johns motion.  Before her response was filed,

John  filed  another  motion, this time asking  that  custody  be

modified.  The impetus for this motion was Phylliss and the  boys

move, without notice to John, out-of-state to Tacoma, Washington.1

Phyllis  responded  to  Johns motions and claimed  that  she  was

complying  with the court-ordered visitation, that  her  move  to

Washington  was  not in violation of the custody  agreement,  and

that John had interfered with her physical custody of the boys.

          The trial court agreed that Phylliss move to Washington

justified a re-examination of the custody agreement and issued an

interim  order  keeping  the custody  agreement  in  effect  with

Washington  State substituted for Juneau.  The trial  court  also

ordered a custody investigation report.  A trial on the motion to

modify   custody  was  held  in  July  2000  after  the   custody

investigation report was filed with the trial court.

          Following  trial,  Judge  Thompson  issued   an   order

granting  Johns  motion to modify custody.  He  stated  that  the

factor  regarding the desire and ability of each parent to  allow

an  open  and loving frequent relationship between the child  and

the  other parent2 was the most important factor in reaching  his

decision.   He  then  discussed  the  other  factors   under   AS

25.24.150(c),  which  he  found to be either  equal  between  the

          parties or not applicable.  Judge Thompson adopted  the

recommendation  of  the custody investigator with  several  minor

exceptions.   Phyllis and John continue to share  legal  custody,

with  John  having primary physical custody.  Phyllis  was  given

visitation during summer vacation, on alternating winter  holiday

and  spring break vacations, with shared travel expenses, and  on

alternating  Thanksgivings, if she takes sole responsibility  for

the   expenses.   Once  again  represented  by  counsel,  Phyllis



          The  trial court has broad discretion in child  custody

decisions.3  A trial courts determination of custody will be  set

aside only if the entire record demonstrates that the controlling

findings  of  fact are clearly erroneous or that the trial  court

abused its discretion.4

          A  finding of fact is clearly erroneous when this court

is  left with a definite and firm conviction that the trial court

has  made a mistake.5  Abuse of discretion is established if  the

trial  court  considered improper factors in making  its  custody

determination,  failed to consider statutorily mandated  factors,

or  assigned disproportionate weight to particular factors  while

ignoring others.6


     A.   The  Trial Court Did Not Make Clearly Erroneous Factual


          1.   The trial was not about Phylliss shortcomings in her

               relationship with John.

          Phyllis  argues that the trial was not about  the  best

interests of the children,  but instead about her shortcomings in

her  relationship  with  John.   Rather  than  considering  Johns

actions,  she contends, the trial court only looked  at  Phylliss

reactions  without taking account of the stress she was suffering

from  Johns  manipulations and her financial  problems.   Phyllis

points  to  the  trial courts statement that [i]t was  [Phylliss]

          adherence  to the letter and spirit of [the Good  Faith

Requirements  in the child custody agreement] that  prompted  two

and one-half days of testimony as evidence of her contention.

          The  trial was not about Phylliss shortcomings  in  her

relationship.   The  trial  court heard testimony  from  nineteen

witnesses  before  issuing  its order.   Though  at  times  their

relationship was discussed, the majority of the testimony of each

witness focused on Phylliss and Johns respective parenting of the

boys.  Aside from its recitation of the collapse of communication

between  Phyllis and John, the trial court makes  no  mention  of

their relationship.7

          2.   The trial court did not err in finding that Phylliss and

               Johns relationship slowly deteriorated beyond repair after

               entering into their property settlement and child custody


          Phyllis finds fault with the trial courts statement  in

its  order  that  [f]ollowing entry  into  the  above  referenced

agreement  the  parties  relationship, already  strained,  slowly

deteriorated  beyond repair.  She argues that  the  record  shows

that the divorce had been high in conflict from the beginning and

that there was no deterioration in their relationship.

          While   the   divorce   was  not   an   amicable   one,

communication  between the parties became even more  tense  after

John  and  Phyllis  signed  the child custody  agreement.   Eight

months  after  the  divorce was final, John  filed  a  motion  to

enforce  his  visitation rights and moved for  sanctions  against

Phyllis.  In his affidavit, John stated that Phyllis had hung  up

on  him  when  he had called to arrange visitation for  times  he

would  be in Juneau on business.  Phyllis did call him back  soon

afterward  but no plans for visitation were agreed to.   He  then

wrote  a  formal  letter and had it served on her  by  a  process

server.   When  no plans were reached, John went  to  the  Juneau

Police Department and had an officer accompany him to her house.

          In  her  request for a continuance for her response  to

          Johns motion, Phyllis spoke of Johns malicious, unlawful

behavior,  and  his  abuse  of  his  law  enforcement  authority.

Furthermore,  she  complained of his  relentlessly  antagonistic,

hate-filled, and malicious harassment.  As the police  had  never

been called and the rhetoric between the parties had not been  as

harsh  prior to the settlement, the trial court did  not  err  in

finding   that   Johns   and   Phylliss   strained   relationship

deteriorated after their divorce.

          3.   The  trial court did not err in finding  that  all

               communication between John and Phyllis had collapsed.

          Phyllis  argues  that the court erred in  finding  that

[p]olite  discussion  became bickering,  then  argument,  and  by

eventual  declension  all communication collapsed.   Rather,  she

contends, the parties had a difficult time communicating  at  all

times following their separation.

          The  trial courts statement regarding the communication

between  the  parties  from  the  date  of  their  separation  is

accurate.  John described Phyllis as hostile towards him, he  had

a letter formally served on her at work, and he filed a custodial

interference report with the Juneau Police Department.

          When  speaking of John soon after he filed  the  motion

for a change in custody, Phyllis stated that he

          did  in  fact walk out on us, his own family,

          cold heartedly and completely without feeling

          or remorse, after moving us hundreds of miles

          from  any other family members who might give

          us   assistance  and  support.   He  in  fact

          abandoned us, he knows it, although  he  will

          continue to twist the truth as he does  while

          looking everyone right in the eye.  [Emphasis


Phylliss  increasing animosity towards John and Johns  escalating

antagonism   fairly   indicate  that  communication   had   badly

deteriorated during the separation.

          4.    The  trial  court  did not err  in  finding  that
Phyllis                      advised                       school
personnel not to cooperate with John.

          Phyllis contends that the trial courts finding that she

advised  the boys school personnel not to cooperate with John  is

not  supported  by the record.  Before moving to Washington,  the

boys  attended  both  Glacier Valley  and  Harborview  Elementary

Schools in Juneau. The custody investigator spoke with Franks and

Ians  teachers at both schools, as well as both principals.   The

investigators  report  states that  Phyllis  told  the  staff  at

Glacier  Valley  not to inform John about any concerns  they  may

have and that they were to deal with her only.

          In  his  testimony,  John stated that  he  had  to  pry

information  about Franks and Ians progress from three  different

school   administrators.    Although   Phyllis   denies   telling

Harborview staff to stop John from seeing the boys, when he tried

to visit Harborview, he reported a very hostile attitude from the

receptionist  and  office  workers.   He  further  reported  that

Phyllis had not listed him in the boys paperwork on record at the

schools.  Phylliss only response is that the custody investigator

and  staff at Glacier Valley as well as Harborview are lying, but

she  gives no reason for them to lie.  As such, the trial  courts

finding  that  Phyllis  advised  the  school  personnel  not   to

cooperate is supported by the record.

          5.   The trial court did not err in finding that transferring the

               boys to a different school was for Phylliss personal reasons.

          Phyllis  alleges that the trial court erred in  finding

that she changed the boys school for personal reasons and in  not

finding that it was the result of a thoughtful parental decision.

In  the  fall of 1998, Phyllis transferred the boys from  Glacier

Valley   to   Harborview   Elementary   School.    Through    her

correspondence with school staff, the custody investigator  found

that  staff and teachers at Glacier Valley had difficulty working

with Phyllis.  They found her to be in denial about problems  the

boys  were  facing and that she avoided dealing with concerns  by

blaming others.

          After  visiting  the  staff  and  teachers  at  Glacier

Valley,  John alleges that Phyllis called to scream at him  about

turning  the  teachers  against her.  Soon  after,  he  contends,

Phyllis transferred the boys to Harborview.  John also stated  in

his  testimony that the reason Phyllis gave for transferring  the

children  was because he had turned the teachers against  Phyllis

and,  as  a result, Glacier Valley was a bad environment for  the

children.  Even though Phylliss desire to transfer the  boys  may

have  been  to  remove  them from an unsatisfactory  environment,

ample  evidence  indicates  she  was  the  main  cause  of   that

unsatisfactory environment.

          6.   The trial court did not err in finding that the boys were

               aware of the move to Washington in advance.

          Phyllis  states  that  the trial courts  finding  that,

according  to  school personnel, the children were aware  of  the

upcoming move to Washington is not supported by the record.  In a

footnote,  Judge Thompson states that the children  were  vaguely

aware  of  a move days before Phyllis quit her job and moved  the

family  to  Washington.   The custody investigator  reports  that

Harborviews principal indicated that the boys were aware  of  the

move  a couple of weeks prior to their departure.  Principal  Dye

stated  that Ian let it slip in school but said he wasnt supposed

to tell anyone.

          Phyllis  argues that even though she did not object  to

this  hearsay, it was plain error for the trial court to  base  a

finding on this statement.  The argument is unpersuasive.  Though

she was pro se during the hearing, Phyllis objected several times

to   hearsay   during  Johns  examination  of  witnesses.    More

importantly, Phyllis admitted in an affidavit that she  spoke  to

the  boys in depth about moving and that they could not  wait  to

leave for Seattle on Saturday.

          The  trial  courts finding that the boys  were  vaguely

aware  of the move is supported by both the custody investigators

report  and  by Phylliss own testimony.  Thus, it was not  error,

much less plain error, for the court to consider it.

          7.   The trial court did not err in imputing an improper motive

               for Phylliss move to Washington.

          1.   Phyllis attacks the trial courts finding that her move from

Juneau  was  for  the purpose of thwarting Johns  access  to  the

children.   She argues that the stress of being a single  working

mother  in  a new town, financial pressures, and lack  of  family

support induced her to move back to the Tacoma area.

          Judge  Thompsons  order  discusses  Phylliss  move   by

stating that [t]he final straw on this camels back was defendants

decision  to abscond from Juneau to Tacoma, Washington  with  the

children  without  any notice whatever to plaintiff.   Defendants

testimony  that  this  move was simply a visit  which  she  later

determined  to become permanent, and/or that it was done  on  the

spur  of  the  moment is frankly incredible.  As  further  proof,

Judge  Thompson mentioned that within hours of leaving  her  job,

Phyllis had loaded two automobiles on the barge for Washington.

          The  record  supports  Judge  Thompsons  findings  that

Phyllis  had  thought of the move in advance and did  not  inform

John  of  her  plans.  John affied that he was not  told  of  the

impending move to Washington.  He also stated that Ian  had  told

him that their belongings were on the barge south when John first

spoke  with Ian after his arrival in Washington.  In one  of  her

affidavits, Phyllis stated that when she, Francis, and  Ian  left

the  Juneau  apartment for the final time, just prior to  leaving

for Washington, the apartment was empty of their belongings.  She

also  stated  that  when  she spoke to  John  after  arriving  in

Washington, she wasnt sure where in Tacoma she was going to live.

Phyllis  told the trial court that the day she quit her  job  she

put  two cars, loaded with her belongings, on a barge headed  for

Tacoma.   Despite  Phylliss claims that  she  was  just  visiting

Tacoma,  the fact that she moved everything out of her  apartment

and  shipped  it  south provided enough evidence  for  the  trial

courts finding that she had planned on moving out of Alaska.

          8.   The  trial court did not err in finding that  John

               had  not  received information about the childrens

               school progress because of Phyllis.

          Phyllis disputes the trial courts finding that John was

forced to pursue inquiries regarding the childrens education  and

health  on  his  own,  long distance, with  no  cooperation.   In

[Phylliss]  words,  that  was his responsibility  -  she  had  no

obligation  to share these things with him.  Phyllis claims  this

finding is clearly erroneous.

          Phylliss  belief that it was not her responsibility  to

inform  John of the childrens school progress is clear  from  her

testimony  and  admitted in her brief.   Her  objection  to  this

statement appears to be more her impression that the judge  found

this  to  be  a  factor  against  her  claim  for  custody.   She

attributes  blame to the settlement agreement,  claiming  that  a

more  specific order as to what was to be provided  and  by  whom

would have solved the problem.

          While  there  was  nothing  mentioned  in  the  custody

agreement   requiring  the  custodial  parent  to  share   school

information, John and Phyllis were to consult with one another on

substantial  questions  relating to educational  programs.   They

were  also  to exert their best efforts to work cooperatively  in

future plans consistent with the best interests of the children .

.  .  .   Having  found  Phyllis to believe  that  it  was  Johns

responsibility to contact the school for information,  the  trial

courts  finding that such a belief did not meet the goals of  the

child custody agreement is supported by the record.

     B.   The Trial Court Did Not Abuse Its Discretion in Awarding

          Custody to John.

                     1.    The  trial  court did  not  abuse  its

               discretion  in  failing to give deference  to  the

               original custody order.

           Phyllis  argues that, when considering  an  action  to

modify  a custody agreement, a court must give deference  to  the

findings made in the original custody determination.  She  states

that courts should be cautious in modifying custody orders.  John

argues  that  the  initial  custody  order  is  not  entitled  to

deference  because there were no factual findings made  when  the

parties settled the custody dispute.

          A  court  may  not modify child custody  or  visitation

without  a  substantial  change in circumstances.8   A  custodial

parents decision to leave Alaska with the children constitutes  a

substantial change in circumstances.9  Such a change justifies  a

judicial  hearing when the parents cannot agree  on  a  mutually-

acceptable custody and visitation agreement.10

          In   addition  to  finding  a  substantial  change   in

circumstances, a court must also consider whether a  modification

of  custody  is  in the best interests of the child.11   A  court

determines  the  best  interests of a child by  considering  nine

statutory factors.12  A judge considering the best interests of a

child  must consider the findings made at the original hearing.13

Here,  there  were no findings of fact made at the  time  of  the

original  order as it was entered into pursuant to  a  settlement

agreement.  Furthermore, the parties began experiencing  problems

soon  after entering into the stipulated custody agreement, which

had  been in effect for less than nine months before Phyllis left

the state.  Given that a custodial parents move out of state with

the  children  constitutes a substantial change in circumstances,

the  trial court did not abuse its discretion in failing to  give

deference to the original custody order.

          Phyllis also makes a passing reference to the fact that

Judge   Thompson   did  not  consider  any  alternative   custody

arrangements.   As this argument was not briefed,  it  is  deemed


          2.   The trial court did not abuse its discretion by placing too
               much weight on the ability of Phyllis to allow the children an
               open and loving relationship with John while not placing enough
               weight on the continuity and stability of the boys relationship
               with Phyllis.
          Phyllis argues that the trial court focused narrowly on

her  adherence  to the good faith requirements of the  settlement

agreement  without  thoroughly  considering  all  of   the   best

interests  factors.  Phyllis argues that the trial  court  solely

considered her negative view of John and did not in turn consider

Johns negative views of her and the impact that would have on the

children were he given custody.

          In  Dingeman  v. Dingeman,15 we upheld a custody  award

after finding that a fathers animosity towards a mother prevented

him  from  fostering an open relationship between the mother  and

child.16  Although the superior court had not pointed to specific

factual   situations  that  indicated  this,  we  found  multiple

indications  of the fathers feelings towards the  mother  in  the

record that supported the trial courts conclusion.17

          In  his  order, Judge Thompson stated that factor  six,

the desire and ability of each parent to allow an open and loving

frequent  relationship between the child and the other  parent,18

was the factor that drove his decision.  Judge Thompson looked at

Phylliss  lack of cooperation in sharing school information  with

John,  her  move  to Washington, and her hostility  to  John  for

having  left  their family to indicate that this  factor  was  in

Johns favor, finding John did not want to pull the children  away

from  Phyllis  as much as he wanted to pull the children  towards


          The  trial  court  also looked at the  other  statutory

factors  in making its determination.  Judge Thompson found  that

the   first   two  factors  concerning  the  childrens  physical,

emotional,  mental, religious, and social needs  favored  neither

the  plaintiff nor the defendant.  Given the boys ages, the trial

court  stated, their preferences, if known, would be given little

weight.   Love  and affection between parent and children  seemed

equal  in  the  courts  view.  Factor seven,  domestic  violence,

abuse,  and/or neglect, and factor eight, substance  abuse,  were

not  present  in  this case.  The court found no other  pertinent

          matters affecting its decision.

           The  only factor not explicitly mentioned by the court

was  AS 25.24.150(c)(5), continuity and stability.  However,  the

trial  court did state that it does not take lightly the decision

to  shift majority custody from the children[]s lifelong  primary

parent.  This statement indicates that the trial court understood

that  continuity of care favored custody remaining with  Phyllis.

The  trial court, however, indicated that the children  were  not

living  in a stable environment.  The trial court found that  the

boys  were  beginning to exhibit the effects of the stress  being

placed   on  them  by  Phylliss  inability  to  encourage   Johns

parenting.   Furthermore, the childrens lives with  Phyllis  were

not necessarily stable.  After the parties separated, Phyllis and

the  boys lived in three different towns, Petersburg, Juneau, and


          Alaska  Statute 25.24.150(c)(5) requires the  court  to

look  to the desirability of maintaining continuity.  While Judge

Thompson  found  Phyllis to be a good parent, he  also  indicated

that her inability to cooperate with John required custody to  be

placed  with  John.   John, he found, only  wanted  to  pull  the

children   toward  himself  rather  than  away  from   [Phyllis].

(Emphasis in original.)

          Judge  Thompson found Phylliss inability to allow  John

               frequent  access to the children, and  the  stress

               that  this  was  causing  the  boys,  to  be  more

               important  than  the desirability  of  maintaining

               continuity  of care by Phyllis.  This decision  is

               supported  by  the recommendation of  the  custody

               investigator who indicated that custody should  be

               changed  immediately, despite  the  disruption  to

               their  education that it would have caused had  it

               been  done when the investigation report was first

               published in late March.           3.   The  trial

               court did not abuse its discretion in its weighing

               of the childrens religious needs.

          Phyllis has raised the boys as Jehovahs Witnesses since

1995.  John has expressed a great deal of hostility towards  this

religion  and  the  effect it is having  on  the  boys.   He  has

expressed  a desire to allow the boys to make up their own  minds

as  to religion when they are old enough to fully understand  it.

Despite  his past hostility towards Phylliss choice of  religious

beliefs, John stated during his testimony that he would not stand

in  the  childrens  way  if  they  choose  to  practice  Phylliss

religion.   He  expressed a tolerance for the childrens  reading,

study,  and  discussion  of  the religion  with  people  who  are

knowledgeable and interested in it.

          Phyllis claims that the trial court did not account for

Johns  intolerance toward the boys religious beliefs as  Jehovahs

Witnesses.   She  claims  that placing the  children,  especially

Francis  who has begun to internalize a religious belief  system,

into a home where such beliefs are not respected is a factor  the

trial court should have given more consideration.

          Although   a  court  may  not  rely  on  the  religious

affiliations   of  the  parties  in  making  a   best   interests

determination, the religious needs of a child are  a  factor  the

court  can  consider.19  The court must make a finding  that  the

child  has actual religious needs and that one parent can  better

satisfy  those needs.20  In deciding actual religious  needs,  we

determine  whether  a child is mature enough  to  make  a  choice

between  a  form of religion or the lack of it.21  In Bonjour  v.

Bonjour, while noting that the maturity of a minor will vary from

case  to case, we commented favorably on one courts holding  that

children  aged  three,  five, and seven  are  not  of  sufficient

maturity  to form an intelligent opinion on so complex a  subject

as religion or their needs with respect to it.22  In that case we

went on to consider the kinds of determinations a trial court may

need  to make when a fifteen-year old child has developed  either

strong religious or anti-religious beliefs.23  As Francis and Ian

          are nine and seven, respectively, they are not yet mature enough

to make a choice between a form of religion or the lack of it.

          In  spite  of  Johns  admitted  instances  of  previous

intolerance,  Judge  Thompson found his  tolerance  expressed  at

trial  to  be  believable.  As such, the  court  found  that  the

religious  aspects  of the first two factors in  determining  the

best  interests of the children favored neither John nor Phyllis.

Because  the  children lacked the maturity needed to  present  an

actual religious belief, the trial court was not required to give

further  consideration  to the boys religious  needs  beyond  its

belief   in  Johns  tolerance.   Furthermore,  the  trial   court

expressly  stated in the order that should Johns  tolerance  wane

and  should  he  begin to affirmatively attempt  to  ridicule  or

undermine  [Phylliss]  religious beliefs to  the  children,  this

factor could become more important.

          4.   The trial court did not abuse its discretion in not

               addressing the cultural needs of the children.

          Phyllis  argues that the trial court failed to consider

the  fact  that the children are bi-racial as a pertinent  factor

under AS 25.24.150(c)(9).  She argues that the trial court failed

to  consider  whether the childrens specific cultural  needs  can

best be met in Petersburg or Tacoma.  Rather than addressing  the

problems  these  boys  may  face as bi-racial  children,  Phyllis

claims that the trial court merely favored the local party.

          John  argues  that  we should not  consider  the  trial

courts lack of findings regarding Francis and Ians cultural needs

because Phyllis did not raise those needs at trial.  He points to

case law indicating that matters that are not brought before  the

trial  court  will  not  be considered on appeal.24   The  court,

however, holds pro se litigants to a less stringent standard than

lawyers.25  As such, if Phyllis in any way flagged the  issue  as

one  of  concern for the trial court to consider, her failure  to

make  an explicit claim should not be held against her.  We  find

that Phyllis met this minimal burden.26

          Because  John,  who  lives  in  Petersburg,  was  given

custody  of  the  children, Phyllis, who lives in Tacoma,  argues

that  the  trial  court failed to address the childrens  cultural

needs.  She claims that in Tacoma the children will be exposed to

the  African-American  culture through their  schooling  and  her

family more than they would living in Petersburg.

           Phyllis claims that under Rooney v. Rooney,27 a  trial

court  must  consider  a childs cultural  needs  in  the  overall

context of a best interests determination.  In Rooney, the mother

in  the  custody dispute was Tlingit, living in Sitka, while  the

father  was  white,  living in Wrangell.  The guardian  ad  litem

recommended  that  because  the  child  was  of  a  mixed  racial

background, he needed to be exposed to both cultures.28   Despite

the  absence  of  a strong native presence and native  elders  in

Wrangell,  especially when compared with the exposure  the  child

would get to the Tlingit culture living with his mother in Sitka,

the superior court awarded custody to the father.29  In affirming

the  custody  award,  we  stated  that  cultural  needs  are  not

determinative and that the mother would have adequate opportunity

to   expose  her  child  to  her  culture  during  her  extensive

visitation  periods (the three month summer vacation and  various

other  school vacations) and through her family that remained  in


          Here,  the  trial  court made no mention  of  the  boys

cultural needs in its order, probably because the parties did not

argue that cultural needs were at issue.  No mention was made  by

Phyllis  of the boys status as bi-racial children in the  custody

investigation  report.  The only mention by John occurs  when  he

speaks of difficulties the children may have fitting in at school

due  to their mixed racial heritage, indicating his awareness and

concern for the problems the children may face.  There is also no

evidence  in  the  record as to the relative  racial  and  ethnic

makeups of Petersburg and Tacoma.

          We  perceive  no  error  pertaining  to  the  childrens

          cultural needs.  As noted, the trial court did not explicitly

consider  the  cultural needs of the boys because  there  was  no

evidence  presented  to  the  trial  court  upon  which  such   a

determination  could be made.  And Phyllis will have  custody  of

the  boys during the three month summer vacation as well as other

various  school vacations, just like the mother in  Rooney.   The

trial  court  knew  that John was aware of the possible  problem.

Finally,  the  boys were being placed into a multiracial  home.31

All  of  these circumstances lead us to conclude that  the  trial

court  did  not abuse its discretion in not explicitly addressing

the childrens cultural needs.


          Because  the  trial  court did  not  make  any  clearly
erroneous  factual  findings nor did it abuse its  discretion  in
awarding custody to John, we AFFIRM the trial courts decision.
     1    Phyllis, who is African-American, argues on appeal that
it was important for her boys to have better access to her family
and their cultural roots.  John is Caucasian.

     2    AS 25.24.150(c)(6).

     3    Jenkins v. Handel, 10 P.3d 586, 589 (Alaska 2000).

     4    Id.

     5    Dingeman v. Dingeman, 865 P.2d 94, 96 (Alaska 1993).

     6    Gratrix v. Gratrix, 652 P.2d 76, 80 (Alaska 1982).

     7     The  report  prepared by the custody investigator  and
relied on by the trial court did mention the relationship history
of Phyllis and John.  But rather than focusing on whose fault the
break-up  was, the investigator allowed both sides to tell  their
version  of  what happened.  And the relationship history  was  a
minor   part   of   the  custody  investigators   report,   which
concentrated heavily on the best interests of the children.

     8    Cooper v. State, 638 P.2d 174, 179 (Alaska 1981).

     9     Moeller-Prokosch v. Prokosch, 27 P.3d 314, 316 (Alaska
2001); House v. House, 779 P.2d 1204, 1207 (Alaska 1989).

     10    House, 779 P.2d at 1208.

     11     AS 25.20.110(a); Jenkins v. Handel, 10 P.3d 586,  589
(Alaska 2000).

     12    AS 25.24.150(c) 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 childs preference if the  child
          is  of sufficient age and capacity to form  a
               (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
               (6)  the  desire  and  ability  of  each
          parent  to allow an open and loving  frequent
          relationship between the child and the  other
               (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.
     13    DeHart v. Layman, 536 P.2d 789, 792 (Alaska 1975).

     14     Adamson  v. Univ. of Alaska, 819 P.2d  886,  889  n.3
(Alaska 1991).

     15    865 P.2d 94 (Alaska 1993).

     16    Id. at 98.

     17    Id.

     18    AS 25.24.150(c)(6).

     19     Bonjour  v.  Bonjour, 592 P.2d 1233, 1238-39  (Alaska

     20    Id. at 1239.

     21    Id. at 1240.

     22    Id. at 1240 n.14.

     23    Id. at 1240.

     24    See B.B. v. D.D., 18 P.3d 1210, 1214 (Alaska 2001).

     25    Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987).

     26    In her direct and cross examinations, Phyllis did bring
up  race a number of times.  She asked about Johns family members
relationships with people of color.  During the trial, John  also
brought  up race, possibly attempting to paint Phyllis as  biased
against white people.  (Judge Thompson, however, stated that  any
such  implications  are unsupported and any overreaction  Phyllis
may have had toward those accusations is understandable.)

     27    914 P.2d 212 (Alaska 1996).

     28    Id. at 214.

     29    Id. at 218.

     30    Id.

     31    Johns girlfriend, Jennifer Valentine, is Vietnamese and
has  a son, James,  whose ethnicity and race do not appear in the
record.   As  the  children will be living in a home  with  John,
Jennifer,  and  James,  they will be  exposed  to  a  variety  of
cultures and races.  Rather than not seeing anyone who looks like
them,  as Phyllis fears, they will see a home where no one  looks
the same as anyone else.