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Kinnard v. Kinnard (03/15/2002) sp-5550
Kinnard v. Kinnard (03/15/2002) sp-5550
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
BERNARD R. KINNARD, )
) Supreme Court No. S-10207
Appellant, )
) Superior Court No.
v. ) 4FA-00-208 CI
)
DEBRA F. KINNARD, ) O P I N I O N
)
Appellee. ) [No. 5550 - March 15,
2002]
________________________________)
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Richard D. Savell, Judge.
Appearances: Gayle L. Garrigues, Law Office
of Rita T. Allee, P.C., Fairbanks, for
Appellant. Andrew Harrington, Alaska Legal
Services Corporation, Fairbanks, for
Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
FABE, Chief Justice.
I. INTRODUCTION
This case arises out of the divorce of Bernard and
Debra Kinnard. The superior court awarded shared custody of
Kristine Kinnard to Bernard, her father, and Debra, her
stepmother. Because the trial court did not err in finding that
Debra is the psychological parent of Kristine, and that removal
of Debra from Kristines life would be detrimental to the child,
we affirm the award of shared custody. We also affirm the trial
courts order directing Bernard to either reinstate Debra to his
health insurance policy or pay for her surgery out of his share
of his pension.
II. FACTS AND PROCEEDINGS
A. Factual History
Bernard and Debra Kinnard were married on October 25,
1993. There were no children born of the marriage. However,
during the marriage, Bernards two children from previous
relationships Brandon, born September 19, 1982, and Kristine,
born November 11, 1988 resided with Bernard and Debra. Bernard
is a nutritional cook at a hospital and Debra is a licensed
foster parent who cares for disabled children. Bernard and Debra
separated in November 1999.
Bernard now lives with another woman, Rachel, who has
an eleven-year-old daughter named Andrea. Rachel has made
physical threats toward Debra, on one occasion in the presence of
Kristine. Kristine also reports that Rachels daughter, Andrea,
often hits her. In June 2000 Bernard and Rachel required
Kristine to write a letter to the custody investigator claiming
that she did not want to live with Debra and that her new mother
was Rachel. Bernard and Rachel told Kristine to write a second
letter in which she stated that she did not want to see Debra
anymore. Kristine later told the custody investigator that
Bernard and Rachel forced her to write the letters and instructed
her on what to say and that the statements in the letters were
not true. In the custody investigators view, Bernard and Rachel
were trying to thwart the relationship between Kristine and
Debra.
Debra suffers from a severe degenerative joint disorder
in her knees which is exacerbated by her weight. The joint
disorder apparently derives from a 1994 injury sustained while
Debra was at work. Because the joint disorder causes pain in her
knees, Debra is unable to exercise and lose weight, which would
in turn alleviate the pain in her knees. Debras doctor first
suggested that Debra consider having bariatric surgery in early
1999.1 Debra reviewed her options with her doctor, and in the
fall of 1999 they decided that she should have the surgery at the
University of Washington hospital.
The University of Washington scheduled Debra for her
first pre-surgery tests during the week of July 10, 2000. This
date conflicted with the custody investigator interviews and
Debra was unable to travel to Seattle for the pre-surgery tests.
Debra then tried to schedule the surgery for the winter of 2000,
but the University of Washington refused because of the weather
in Alaska at that time of year, suggesting that the pre-surgery
tests and the eventual surgery take place in the spring of 2001.
Before trial, and while the parties were still legally married,
Bernard wrote a letter to his health insurance company requesting
that Debra be dropped from his employer-provided insurance
policy. Thus, Debra has been unable to afford the surgery.
B. Procedural History
When Bernard filed for divorce in January 2000, Debra
maintained that she stood in loco parentis to both Brandon and
Kristine and requested primary physical custody of Brandon and
joint physical custody of Kristine. Superior Court Judge Ralph
R. Beistline issued a standing order and preliminary injunction
for domestic relations actions that restrained the parties from
disposing of marital property.
Superior Court Judge Richard D. Savell ordered a
custody investigation. The custody investigator quickly
determined that Brandon would not be part of the investigation
because he would be eighteen years of age before the
investigation was complete.2 The custody investigator ultimately
concluded that Debra was the psychological parent of Kristine and
recommended that the parties share legal and physical custody of
Kristine. The custody investigator recommended that this shared
custody consist of alternating weeks with each parent.
Bernard took the position at trial that he should have
sole custody and that Debra should have no visitation with
Kristine. He claimed that pursuant to the United States Supreme
Courts recent decision in Troxel v. Granville,3 Debra bore the
burden of proving that Bernard is an unfit parent in order to
maintain her claim to custody.
After a three-day trial in December 2000, the trial
court found the evidence to be overwhelming, even uncontradicted,
that Debra holds the place of a mother in Kristines life. The
trial court awarded the parties shared custody but withheld the
divorce decree until after Debras surgery so that she could
retain her health insurance.
Bernard filed a motion to reconsider the trial courts
decision to delay the decree of divorce to allow for Debras
surgery. Bernard supplemented the motion, arguing that Debras
surgery was purely elective and she should try dieting or
exercise instead. The trial court granted the motion to
reconsider and ordered that a divorce decree be entered.
However, the trial court noted in its order that
[Bernards] removal of medical coverage before
trial and without notice or leave of court
has damaged [Debra] and violated the
Presiding Judges Standing Order. He will be
liable for all costs incurred by [Debra] that
would have been covered by insurance but for
his wrongful acts. His liability may be
enforced against his pension.
Bernard appeals the award of shared custody and the order holding
him liable for the costs of Debras medical care.
III. STANDARD OF REVIEW
It is well settled that trial courts have broad
discretion in determining child custody issues.4 We will reverse
a trial courts custody determination only if we are convinced
that the trial court has abused its discretion or that
controlling findings of fact are clearly erroneous.5 An abuse of
discretion may be found where the trial court considered improper
factors, failed to consider statutorily mandated factors, or
improperly weighed certain factors in making its determination.6
A factual finding is clearly erroneous only when a review of the
entire record leaves us with a firm conviction that the trial
court has made a mistake.7 With respect to questions of law, we
apply our independent judgment and adopt the rule that is most
persuasive in light of precedent, reason, and policy.8
IV. DISCUSSION
A. The Finding that Debra Is the Psychological Parent of
Kristine Is Not Clearly Erroneous.
The trial court found that Debra had become Kristines
psychological parent. After concluding that Debra Kinnard holds
a place in [Kristines] life that is of equal or even greater
importance than a natural mother, the trial court added that [i]f
this were a contest between two natural parents . . . [Bernard]
would be stripped of custody of this child. The trial court
further emphasized: Not only by a preponderance of the evidence,
not by clear and convincing evidence, but this court finds beyond
any reasonable doubt that removal of Debra Kinnard from
[Kristines] life would be devastating to [her].
Bernard first argues that there is insufficient
evidence to support the trial courts finding that Debra is
Kristines psychological parent. In particular, he argues that
there was little evidence of Kristines attitude or feelings
toward Debra. In Carter v. Brodrick, we recognized the concept
of psychological parenthood, which finds its legal basis either
explicitly or implicitly in the common law doctrine of in loco
parentis.9 In contrast to Bernards current argument that the
doctrine of in loco parentis must be based exclusively upon the
childs feelings and attitude towards the stepparent, in Carter,
we relied on a description of a psychological parent as one who,
on a day-to-day basis, through interaction, companionship,
interplay, and mutuality, fulfills the childs psychological need
for an adult.10 Whether a stepparent has assumed the status of a
psychological parent depends on whether that person intends to
assume that obligation.11 Thus, the perspectives of both the
stepparent and the child on this mutual, parent-child bond are
relevant. In Carter, we concluded that under Alaska law, those
relationships that affect the child which are based upon
psychological rather than biological parentage may be important
enough to protect through custody and visitation, to ensure that
the childs best interests are being served.12
Many witnesses at trial testified to Debras status as a
psychological parent of Kristine. Kristine had lived with
Bernard and Debra from the time that she was in kindergarten, and
Bernard admitted that Debra and Kristine had bonded together from
the beginning of their relationship. Two expert witnesses as
well as the custody investigator testified that Debra and
Kristines relationship was that of parent and child; indeed, the
custody investigator concluded that Debra was a psychological
parent to both Kristine and Brandon. There is ample evidence in
the record to support the trial courts finding that Debra was
Kristines psychological parent, and that finding is not clearly
erroneous.
B. The Trial Court Applied the Proper Legal Standard.
Bernard maintains that even if Debra is the
psychological parent of Kristine, the trial court applied an
improper standard to determine custody. Bernard contends that
the trial court applied the best interests test, when it should
have applied the detrimental to the welfare of the child test.
The former, he argues, only applies when the custody dispute is
between two biological parents, while the latter applies when the
dispute is between a parent and a third party.
But Bernard appears to have misunderstood the trial
courts actions and findings. Although the trial court initially
suggested that the best interests test would apply, after
briefing by both parties the court ultimately applied a different
standard. The trial court explicitly recognized the distinction
between the best interests and detriment standards when it stated
that [i]f this were a contest between two natural parents, and
the actions and behaviors of the parties were as they are here,
[Bernard] would be stripped of custody of this child. The court
then found beyond any reasonable doubt that removal of Debra
Kinnard from [Kristines] life would be devastating to the child
and [w]ould cause severe and irreparable harm.
We discussed the proper standard for determining
custody between a biological parent and a third party in Turner
v. Pannick.13 We concluded that parental custody is preferable
and only to be refused where it clearly would be detrimental to
the child.14 The childs biological parent must be awarded custody
unless the trial court determines that the parent is unfit, has
abandoned the child, or that the welfare of the child requires
that a non-parent receive custody.15 Even in custody disputes
between parents and stepparents, the best interests standard is
rejected in favor of the Turner parental preference. Therefore,
the Turner standard is the proper standard for this case.
Here, although the trial court did not specifically refer to
Turner, it did emphasize that removing Debra from Kristines life
altogether would cause severe and likely irreparable harm to
Kristine. As we recognized in Buness v. Gillen, severing the
bond between the psychological parent and the child may well be
clearly detrimental to the childs welfare.16 Thus, the trial
court properly examined both the extent of the strong emotional
bond between Debra and Kristine and the question of whether
severing that bond would be detrimental to Kristine. It is
evident that the trial court applied the correct standard in its
finding that removing Debra from Kristines life altogether would
be not only detrimental but also devastating to the child. The
trial court thus properly applied the Turner standard.
C. The Trial Courts Analysis Does Not Conflict with Troxel
v. Granville.
Bernard next argues that even if the trial court
properly applied the in loco parentis doctrine of Carter and
Buness, that doctrine has been modified by Troxel v. Granville.17
He explains that [i]n essence, a portion of AS 25.24.150(a) has
been found unconstitutional by the United States Supreme Court.
In Troxel, the Supreme Court ruled that Washingtons grandparent
visitation statute was unconstitutional as applied.18 Bernard
relies on Troxel to challenge the constitutionality of AS
25.24.150(a), which contemplates orders providing for visitation
by a grandparent or other person if that is in the best interests
of the child. But AS 25.24.150(a) did not form the basis for the
trial courts ruling in this case, and, therefore, its
constitutionality is not properly before us in this appeal. As
noted above, the trial court did not rely on the best interests
standard, instead implicitly employing the tests of Carter v.
Brodrick and Turner v. Pannick to determine that Debra is
Kristines psychological parent and that loss of this parent-child
bond would have a devastating effect on Kristine. And Troxel
involved neither a claim of psychological parenthood nor a
determination that depriving the child of a psychological parent
would negatively affect the welfare of the child.19 Therefore,
the trial courts ruling does not run afoul of the holding in
Troxel.
D. The Order for Medical Payment Was Within the Trial
Courts Broad Discretion.
At the start of this divorce proceeding, Presiding
Judge Beistline issued a standing order restraining the parties
from
[d]isposing of, encumbering, or transferring
any marital property without the written
consent of the other party, except reasonably
using funds for the parties expenses or for
the personal and necessary expense of the
children.
While the parties were still married, and before trial began,
Bernard contacted his employer-provided health insurer and
directed that Debra be removed from his insurance policy
effective November 30, 2000. The insurer removed Debra from
Bernards policy, and without proof of insurance Debra was unable
to afford the recommended surgery.
The fact that Debra was removed from Bernards coverage
did not surface until the end of trial in December 2000. When
questioned by the trial court, Bernard asserted that, although he
was not sure if he would now be able to reinstate Debras
coverage, he would try. The trial court, presuming Bernard would
restore Debra to his health insurance, announced its intent to
delay entering the divorce decree until after Debras surgery.
The trial court characterized this as a fair and compassionate
and economically practical thing to do, reasoning that, in the
absence of any proof of harm to Bernard, there was no reason to
issue the decree until after the surgery.
Bernard filed a motion for reconsideration requesting
that the decree of divorce be entered immediately; this motion
was granted in January 2001. However, the trial court noted in
its order that Bernard had damaged [Debra] and violated the
Presiding Judges Standing Order and that Bernard would be liable
for all of the costs of the surgery that would have been covered
by the health insurance. The trial court added that Bernards
liability may be enforced against his pension. In its final
ruling, entered on May 2, 2001, the trial court elaborated on its
earlier order regarding payment of Debras medical expenses:
[T]he court finds that Bernard dropped Debra
from his employer-provided health insurance
coverage before trial without notice to her
and in violation of the courts standing
domestic relations order. If Bernard is
unable to restore Debra to his insurance
coverage through his employment, any surgery
costs that Debra incurs during 2001 for
planned surgery will be paid for out of
Bernards remaining share of his pension. If
the cost of Debras surgery exceeds the total
amount of Bernards share of his pension plan,
the marital portion of Bernards . . . 401(k)
pension plan shall be distributed to Debra in
its entirety (100%), provided that the
surgery is performed by December 31, [2001].
The Court will retain jurisdiction to enter a
QDRO after December 31, 2001.
1. Bernard violated the trial courts standing order.
Bernard first claims that he did not violate the
standing order because health insurance is not property under the
standing order and was therefore not protected by the order. He
asserts that he has no control over the health insurance in that
he cannot sell or transfer it, and it has no cash value. But in
Brooks v. Brooks, we implied that health insurance should be
treated as a marital asset.20 There, the wife cancelled her
husbands coverage under her medical insurance policy, and we
approved the superior courts response to this depletion of a
marital asset: giving the husband a credit for his uncovered
medical expenses. We conclude that unilateral removal of a
spouse from ones health insurance policy constitutes dissipation
of a marital asset.21
Coverage under a health insurance policy is a marital
asset. The presiding judges standing order specifically directed
the parties not to dispose of marital property. Bernard, by
disposing of Debras health insurance, violated that order.
2. The trial courts order that Bernard either
reinstate Debras coverage or pay her medical bill
was within its broad discretion.
Bernard claims that, by ordering him to reinstate
Debras coverage under his policy or pay her surgery costs out of
his half of the pension, the trial court awarded Debra an unequal
share of the marital property. Bernard further contends that
awarding a portion of his pension share to Debra to cover the
costs of surgery is not an appropriate remedy because it is
unjustifiably punitive. But Bernard had several options for
remedying his unilateral act, including rescinding his letter to
the insurance company, paying for COBRA coverage long enough to
cover the operation, or paying for the surgery from his own
resources. Bernards retirement account was to be used only if he
did not take advantage of the other options available.
Moreover, the trial courts order was entirely within
the scope of its authority to fairly allocate the economic
consequences of the divorce.22 Under AS 25.24.160(a)(4), when
dividing the marital property the trial court is directed to
consider the parties health, their earning capacities, their
financial conditions including the availability and cost of
health insurance, as well as any unreasonable depletion of the
marital assets.23 Thus, the trial courts order, rather than
punishing Bernard, properly considered the statutory criteria and
compensated Debra for the premature loss of health insurance.
The trial court placed Debra in the position she would have been
in had Bernard not removed her from his insurance. This order
was well within the courts statutory authority as well as within
its general equitable authority.24
V. CONCLUSION
For the foregoing reasons, the decision of the trial
court is AFFIRMED in all respects.
_______________________________
1 Bariatric surgery is a major surgery which reduces the
size of the stomach and reroutes parts of the digestive system.
The surgery takes three to five hours to perform, followed by a
five- to seven-day stay in the hospital.
2 Brandon currently resides with Debra by his own choice.
3 530 U.S. 57 (2000).
4 Valentino v. Cote, 3 P.3d 337, 339 (Alaska 2000).
5 Holl v. Holl, 815 P.2d 379, 380 (Alaska 1991).
6 Pearson v. Pearson, 5 P.3d 239, 242 (Alaska 2000).
7 Money v. Money, 852 P.2d 1158, 1161 (Alaska 1993).
8 Vachon v. Pugliese, 931 P.2d 371, 375 (Alaska 1996).
9 644 P.2d 850, 853 (Alaska 1982).
10 Id. at 853 n.2 (quoting Gruenberg & Mackey, A New
Direction for Child Custody in Alaska, 6 U.C.L.A.-Alaska L. Rev.
34, 36 (1976)).
11 644 P.2d at 853.
12 Id. at 855.
13 540 P.2d 1051 (Alaska 1975).
14 Id. at 1054.
15 Id. at 1054-55.
16 781 P.2d 985, 989 n.8 (Alaska 1989).
17 530 U.S. 57 (2000).
18 Id. at 66-67.
19 Id. at 60-63.
20 677 P.2d 1230, 1235 (Alaska 1984).
21 Commentators have recognized a sound policy basis for
treating health insurance as an asset for the spouse who is
insured. See, e.g., William R. Horbatt & Alan M. Grosman,
Division of Retiree Health Benefits on Divorce: The New
Equitable Distribution Frontier, 28 Fam. L.Q. 327, 327-28 (1994);
see also Elizabeth L. Bennett & John W. Goldsborough,
Guaranteeing Medical Insurance Coverage After Separation or
Divorce, 28 Fam. L.Q. 305 (1994) (demonstrating valuation of
medical retirement benefits).
22 See AS 25.24.160(a)(4), which provides in part:
[T]he division of property must fairly
allocate the economic effect of divorce by
being based on consideration of the following
factors:
. . . .
(E) the conduct of the parties,
including whether there has been unreasonable
depletion of marital assets.
23 AS 25.24.160(a)(4)(B)-(E).
24 See Siggelkow v. State, 731 P.2d 57, 61-62 (Alaska
1987).
