| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
This site is possible because of the following site sponsors. Please support them with your business.
|
| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
|
|
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. Puddicombe v. Dreka (09/14/2007) sp-6164
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| CHERISH PUDDICOMBE, | ) |
| n/k/a CHERISH POOLE, | ) Supreme Court No. S- 12589 |
| ) | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 3PA-05-2001 CI |
| ) | |
| TODD DREKA, | ) O P I N I O N |
| ) | |
| Appellee. | ) No. 6164 September 14, 2007 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Palmer,
Eric Smith, Judge.
Appearances: Carl D. Cook, Houston &
Houston, P.C., Anchorage, for Appellant. No
appearance by Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
MATTHEWS, Justice.
I. INTRODUCTION
This case involves a custody dispute between Cherish
Poole1 and Todd Dreka over their daughter Sydney Lynn Dreka.
Poole appeals the superior courts award of custody to Dreka in
the event Poole relocates to Arizona. Since the superior court
found that both parties engaged in domestic violence but did not
address the statutory requirements regarding domestic violence
found in AS 25.24.150(c)(6) and AS 25.24.150(g)-(i), we remand
for more specific findings.
II. FACTS AND PROCEEDINGS
Sydney Lynn Dreka was born on March 31, 2003. Her
parents, Todd Dreka and Cherish Poole, were never married. Poole
has two other daughters from an earlier marriage who were eleven
and fifteen at the time of the custody trial.
In December 2005 Poole moved for an ex parte custody
award, interim custody, and a restraining order. The superior
court denied her request to file the motions ex parte and ordered
an interim custody hearing. At the May 2006 interim custody
hearing the superior court granted shared 50/50 physical custody
on an interim basis until the custody trial and ordered no
contact between the parties except during exchanges. In July
2006 Poole married a resident of Arizona. At trial in August
2006 she testified that she was planning to move to Arizona
permanently with her three daughters. After the trial, the
superior court awarded shared custody if both the parties resided
in Alaska. In the event that Poole relocated to Arizona,2 the
superior court awarded month on/month off visitation until Sydney
started school in September 2008. At that point Dreka would
assume primary physical and sole legal custody, and Poole would
have visitation during some school breaks and the summer.
Poole appeals this custody award. Dreka did not
participate in this appeal.
III. DISCUSSION
The superior court must award child custody based on
the best interests of the child,3 taking into consideration nine
factors listed in AS 25.24.150(c). This court reviews child
custody decisions for abuse of discretion, which occurs when we
are left with a definite and firm conviction, after reviewing the
whole record, that the trial court erred in its ruling.4 In
child custody cases, we will find the superior court abused its
discretion if it considered improper factors in making its
custody determination, failed to consider statutorily mandated
factors, or assigned disproportionate weight to particular
factors while ignoring others.5 Factual findings are overturned
if they are clearly erroneous, meaning that a review of the
entire record firmly convinces us that a mistake has been made.6
A. It Was Error To Fail To Explicitly Address the
Statutory Provisions Dealing with Domestic Violence.
Poole made serious allegations of domestic violence.
She claimed that Dreka punched her on numerous occasions,
sexually assaulted her, choked her, and threatened to hire a hit
man to kill her. She also claimed that he shoved her daughter
Britney. She did not present any witnesses who testified to
seeing any physical violence on the part of Dreka. One of Pooles
coworkers testified that Poole had a black eye once while she was
dating Dreka. Dreka maintains that he never physically assaulted
Poole or Britney and never threatened Poole. He also claimed
that Poole punched him on at least one occasion and bit him
twice.
There was extensive testimony about several
altercations that occurred between the parties. For example,
there was an incident in Alaska in July 2005 that was discussed
in detail at trial. Dreka and his father claim that Poole lost
her temper and started pushing and shoving Dreka and screaming
profanities at him and eventually bit him in the back. Poole
claims that Dreka was chasing her. There was another fight in
Florida that Drekas grandmother heard but did not see. She
testified that Dreka was bleeding after the fight and she had to
tend to bite wounds and scratches. Poole stated that Dreka
assaulted her and she bit him in self-defense. Thus, while
witnesses did see clashes between Poole and Dreka, a bite mark on
Dreka and a black eye on Poole, most of the evidence regarding
physical violence was from the parties themselves and was highly
contested.
Alaska Statute 25.24.150(c)(7) requires the superior
court to consider any evidence of domestic violence, child abuse,
or child neglect in the proposed custodial household or a history
of violence between the parents. The superior court made the
following finding with respect to this factor:
Domestic violence, although both parents
are going to disagree strongly with me, from
what I can tell, this was mutual. Both
parents have a substantial anger problem.
Both of them substantially have minimized it
and both of them need to think long and hard
about whats going on but I was fairly taken
aback by the attitude both parents exhibited
on the stand in this respect.[7]
The superior court did not elaborate on this finding or make any
additional factual findings regarding domestic violence.
The superior courts language clearly indicates a
finding that both parties engaged in domestic violence. A
finding of domestic violence triggers two other statutory
requirements with respect to child custody.
1. Alaska Statute 25.24.150(c)(6)
The legislature addressed the issue of how the court
should consider domestic violence when dealing with child custody
when it amended AS 25.24.150 in 2004.8 The first change dealt
with AS 25.24.150(c)(6), which requires the court to consider the
willingness and ability of each parent to facilitate and
encourage a close and continuing relationship between the other
parent and the child. The legislature added language that
prohibits a court from considering this factor in certain
situations:
except that the court may not consider this
willingness and ability if one parent shows
that the other parent has . . . engaged in
domestic violence against the parent or a
child, and that a continuing relationship
with the other parent will endanger the
health or safety of either the parent or the
child[.][9]
The superior court seemed to base its custody
determination almost entirely on subsection .150(c)(6). The
court found both parties to be equally fit parents: [b]alancing
all [the] factors together, I cant say at this point that either
partys a more fit parent than the other. The court then
emphasized Pooles lack of cooperation and communication with
Chris Puddicombe, the father of her two oldest daughters:
[There is] very little question that if I
were to authorize the plaintiff to take this
child to AZ with primary custody that the
defendant is highly unlikely [to] see her,
unless he moved to AZ. And even then it
would be a fight. The Court is also . . .
quite concerned that if plaintiff were
awarded sole legal custody defendant would be
in the dark just like Mr. Puddicombe.[10]
Poole argues that the superior court abused its discretion by
relying on this factor in light of testimony regarding Drekas
domestic violence.
In general the trial court does not need to discuss
each factor in AS 25.24.150(c).11 Once the trial court makes an
evidence-based finding that domestic violence occurred, however,
it should explicitly address whether or not the parent is a
continuing threat to the health and safety of the other parent of
the children prior to relying on the parents willingness to
foster a relationship under AS 25.24.150(c)(6). Since the court
did not address the domestic violence exception to the subsection
(c)(6) factor a remand is necessary. On remand the superior
court should make findings as to whether Dreka represents a
continuing danger to the health and safety of Poole or Sydney.
If the court finds that Dreka does represent such a danger, then
it should revisit the custody issue without relying on AS
25.24.150(c)(6).
2. Alaska Statute 25.24.150(g)-(i)
The legislatures recent amendments also added several
new sections to the child custody statute, including AS
25.24.150(g)-(i).12 Alaska Statute 25.24.150(g) creates a
rebuttable presumption that a parent with a history of
perpetrating domestic violence will not be awarded sole or joint
custody of the child. Alaska Statute 25.24.150(h) states that a
parent should be considered to have a history of perpetrating
domestic violence under (g) of this section if the court finds
that, during one incident of domestic violence, the parent caused
serious physical injury or the court finds that the parent has
engaged in more than one incident of domestic violence. Finally,
AS 25.24.150(i) tells the trial court how to deal with situations
in which both parents are found to have a history of perpetrating
domestic violence.13
The question presented here is very similar to the one
discussed with respect to subsection .150(c)(6) above: can the
superior court make a finding of domestic violence but not
explicitly address whether it was serious enough to be a history
of perpetrating domestic violence under the definition set out in
subsection .150(h)? Poole did not make this argument on appeal,
however, so it is waived unless the superior courts failure to
discuss the provisions was plain error.
We hold that when the record shows that domestic
violence has occurred and the court so finds, it is plain error
for the court not to make findings as to whether the domestic
violence amounted to a history of perpetrating domestic violence.
If such a history is found then the path charted in subsection
.150(g)-(i) must be followed. Thus, we remand this case for
findings regarding whether either partys domestic violence
satisfied the definition of a history of perpetrating domestic
violence set forth in AS 25.24.150(h).
B. The Superior Court Did Not Abuse Its Discretion by
Awarding Custody to Dreka Even Though Sydneys Sisters
Live with Poole.
Poole contends that the superior court failed to
consider the relationship between Sydney and her sisters when
awarding Dreka primary physical custody as of September 2008.
This court has often embraced the proposition that it
is desirable to not separate siblings in the course of custody
disputes.14 However, rather than establishing rigid legal maxims,
we have instead opted for a more flexible approach.15 This is
because, even though maintaining sibling relationships will
typically be in the best interests of the child, cases will
undoubtedly arise where the best interests of the child dictate
otherwise.16 Thus, this court has given trial judges the
necessary discretion to best respond to the myriad of factual
settings which will invariably arise in custody matters, at all
times cognizant that it is the best interests of the child which
is the paramount consideration.17
The superior court discussed the sibling relationship
when it addressed AS 25.24.150(c)(5), which requires the court to
consider the length of time the child has lived in a stable,
satisfactory environment and the desirability of maintaining
continuity. The court stated the following with respect to this
factor:
The next factor is continuity, the Court
doesnt really see that as a factor here. The
parents have been sharing custody lately, the
kid[] bounced around, spending extended
periods of time with one or the other parent
all her life, in some ways, it cuts both
ways, shes got a lot of family and support up
here in AK, shes got two sisters down in AZ
right now, but if the Court starts factoring
that in th[e]n it becomes a self fulfilling
prophecy, so the Court doesnt see continuity
as a significant issue.
Thus, the court did consider the existence of the siblings in its
best interests analysis. While it did not specifically refer to
a preference for keeping siblings together, it did note that the
sisters had already spent time apart18 and emphasized the presence
of family in Alaska. There is support in the record for these
findings. The parents shared custody prior to trial, and there
was testimony indicating that Sydney spent an extended period of
time in Florida with Dreka as well. Both sets of grandparents
reside in Alaska, although Drekas parents spend time in Florida
every winter.
Pooles argument that the superior court refusal to
include the sibling relationship in the best interest analysis is
therefore incorrect. The superior court noted the sibling
relationship but determined that given the other family
relationships in Alaska and the extended periods of time Sydney
had been separated from her siblings, the sibling relationship
was not dispositive. The superior court did not abuse its
discretion in this respect.19
IV. CONCLUSION
The superior court did not abuse its discretion by
failing to give decisive weight to the desirability of keeping
Sydney with her siblings. However, given the evidence and the
courts findings of domestic violence, it was error not to address
the domestic violence exception contained in AS 25.24.150(c)(6)
and the domestic violence provisions set out in AS 25.24.150(g)-
(i). The custody award is therefore vacated, and this case is
remanded for findings in compliance with these statutory
subsections. The court may order a supplemental hearing if in
the judgment of the court a supplemental hearing will be useful
or necessary.
VACATED and REMANDED.
_______________________________
1 Cherish Poole was formerly known as Cherish Puddicombe.
She changed her name when she remarried in July 2006.
2 After the trial Poole relocated to Arizona.
3 AS 25.24.150(a). AS 25.24.150 establishes how the
court should determine custody when the parents are divorcing.
Unmarried parents may petition for custody under AS 25.20.060,
which requires the court to consider the factors enumerated in AS
25.24.150(c) as well as the presumption established in AS
25.24.150(g).
4 Silvan v. Alcina, 105 P.3d 117, 120 (Alaska 2005)
(quotation omitted).
5 Id. (quotation omitted).
6 Schmitz v. Schmitz, 88 P.3d 1116, 1121 (Alaska 2004).
7 The superior court issued oral findings of fact and
conclusions of law, which were transcribed by Poole at the
request of the court.
8 Ch. 111, 4-5, SLA 2004.
9 Id. 4.
10 There is support in the record for this finding.
Dreka, Chris Puddicombe, and Puddicombes girlfriend, Nannette
Hearn, testified extensively as to problems gaining access to and
information about their children when Poole had custody of them.
11 In Park v. Park this court held that the trial court
does not need to explicitly refer to each of the nine factors in
AS 25.24.150(c):
While a court determining custody must
always consider each of these statutory
factors, it need not refer to all of them in
explaining its custody decision. The court
needs only to discuss those factors that it
considers actually relevant in light of the
evidence presented in the case before it;
express mention of each factor is not
required, but the courts findings must at a
minimum give us a clear indication of the
factors which [it] considered important in
exercising its discretion or allow us to
glean from the record what considerations
were involved.
986 P.2d 205, 207 (Alaska 1999) (alteration in original)
(quotations omitted).
12 Ch. 111, 5, SLA 2004.
13 AS 25.24.150(i) states the following:
If the court finds that both parents
have a history of perpetrating domestic
violence under (g) of this section, the court
shall either
(1) award sole legal and physical
custody to the parent who is less likely to
continue to perpetrate the violence and
require that the custodial parent complete a
treatment program; or
(2) if necessary to protect the welfare
of the child, award sole legal or physical
custody, or both, to a suitable third person
if the person would not allow access to a
violent parent except as ordered by the
court.
14 Craig v. McBride, 639 P.2d 303, 306 (Alaska 1982).
15 Id.
16 Id.
17 Id.
18 In Craig v. McBride this court noted that the fact that
siblings were separated for substantial lengths of time could be
relevant to the determination of the best interests of the child.
639 P.2d at 306 n.11.
19 Poole also argues that the superior court failed to
give proper weight to the Appellees admitted intoxication
immediately prior [to] picking up the minor child. The superior
court discussed the incident in question and found it to be
problematic. However, the court found it to be a one time thing,
and didnt put a lot of weight on it. Since there was little
evidence beyond this incident that shows that Dreka regularly
drove drunk or had a drinking problem, the superior court did not
abuse its discretion in making this finding.
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
