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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Littleton v. Banks (09/12/2008) sp-6304
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
| DANNIELLE LITTLETON, | ) |
| ) Supreme Court No. S- 12508 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 3AN-03-13071 CI |
| ) | |
| ROBERT BANKS, JR., | ) O P I N I O N |
| ) | |
| Appellee. | ) No. 6304 - September 12, 2008 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Morgan Christen, Judge.
Appearances: David R. Edgren, Edgren Law
Offices, LLC, Anchorage, for Appellant.
Kathleen A. Weeks, Law Offices of Kathleen A.
Weeks, Anchorage, for Appellee.
Before: Fabe, Chief Justice, Matthews,
Carpeneti, and Winfree, Justices. [Eastaugh,
Justice, not participating.]
CARPENETI, Justice.
I. INTRODUCTION
A father moved to modify a shared custody arrangement
so that he could relocate with his daughter to another town. The
superior court granted sole legal and primary physical custody to
the father. The mother contends that the superior court erred by
relying primarily on a report prepared by a court-appointed
custody investigator who failed to notify the court upon her
appointment that she had recently traveled to Peru with the
fathers attorney. Because the courts findings were sufficiently
supported by evidence other than the custody report, we conclude
that any error in relying on the custody investigators report was
harmless. We therefore affirm the lower courts award of custody.
II. FACTS AND PROCEEDINGS
Dannielle Littleton and Robert Banks (Bob) met sometime
around 1997 when Bob started to treat Dannielle at his
chiropractic practice. They married in 2000. At the time
Dannielle had two young sons from previous relationships, one
born in 1997 and one born in 1999. Dannielle gave birth to the
couples only child, a daughter, in October 2000.
Both of Dannielles sons have behavioral problems
resulting from multiple mental health issues. Her older son has
been diagnosed with Bipolar Disorder, ADHD, PTSD, and
Oppositional Defiant Disorder, and his treating psychiatrist
reported that he experienced command auditory hallucinations,
directing him to murder himself and others, and the devil was
telling him to do so. The younger boy has been diagnosed with
Bipolar Disorder, manic, severe (provisional); ADHD; PTSD;
Oppositional Defiant Disorder; and Encopresis. In addition to
his diagnosed psychiatric issues, this child had difficulty
getting along with his sister, Dannielle and Bobs daughter.
Several reports by the Office of Childrens Services
(OCS) were filed regarding Dannielle and Bobs care of the boys.
These included reports against Dannielle after the younger boy
was born positive for marijuana and reports against Bob for
striking both boys. There were also OCS reports of domestic
violence between Dannielle and Bob.
Dannielle and Bob divorced in May 2004; their daughter
was three years old at the time. The court granted Bob legal
custody of the child and granted Dannielle and Bob shared
physical custody. Under the shared physical custody arrangement
Bob had the child five days a week and Dannielle had her two days
a week. In its Findings of Fact and Conclusions of Law, the
court reasoned that Bob was the more appropriate sole legal and
primary physical custodian because Dannielle had to focus her
energy on her extremely active and very demanding sons as well as
substance abuse treatment and pursuit of her education and
career. The court advised Dannielle that [w]hen [the child]
begins kindergarten, if [Dannielle] is able to demonstrate that
she has remained in compliance with the recommendations of her
substance abuse treatment providers and mental health care
professionals . . . a motion to modify custody may be considered
based upon an analysis of the best interests of the child.
Just over a year later Bob filed his Motion to Modify
Custody and Motion to Change Childs Residence to Sitka. Bob
sought permission from the court to move so that he could take
over a chiropractic practice in Sitka.1 Bob also filed his
Motion to Reappoint the Custody Investigator Originally
Appointed, requesting that the court reappoint custody
investigator Susan Arth. Dannielle opposed both motions. The
court granted Dannielles request for an evidentiary hearing on
the matters, but denied Bobs motion for expedited consideration.
The matter proceeded before a standing master. The
master issued her findings on December 13, 2005. These findings
included the masters recommendation to reappoint Arth as custody
investigator. In her response to the masters findings, Dannielle
withdrew her opposition to Arths reappointment. The court
subsequently reappointed Arth.
Arth filed her report in May 2006. The forty-one page
report, the longest that Arth had ever submitted to a court,
recommended that the court grant Bob sole legal custody and
primary physical custody.
Following the submission of the report the standing
master resumed the child custody proceedings. The master
requested that the hearing be moved to the superior court. The
court heard testimony for three days in September and October
2006. While being questioned on cross-examination, Arth revealed
that she had organized and participated in a ten-person tour to
Peru that included Bobs attorney, Kathleen Weeks. This trip
occurred in the summer of 2004, after Arths initial custody
report but before Bobs motion for her reappointment as custody
investigator. As a result of this undisclosed relationship,
Dannielle moved to strike Arths report. The court denied the
motion, finding that the custody investigator was thoroughly
cross-examined on the content of her report and on her
impartiality. She credibly testified that the contacts she has
had with Ms. Weeks did not influence her recommendations.
Based upon evidence presented during trial and Arths
recommendations, the court granted Bobs motion and awarded him
sole legal and primary physical custody the couples daughter;
they now live in Kodiak. The court noted that Dannielle has done
a much better job of meeting the childrens emotional needs in the
period since August of 2005. However, [Bob] has a longer track
record of meeting [the childs] emotional needs.
Dannielle appeals.
III. STANDARD OF REVIEW
We will overturn a superior courts child custody
determination only if the entire record demonstrates that the
controlling findings of fact are clearly erroneous or that the
trial court abused its discretion.2 We will find clear error
where, after a review of the entire record, we are left with the
definite impression that a mistake has been made.3 The trial
court abuses its discretion where it considers improper factors
in making its custody determination, fails to consider
statutorily mandated factors, or assigns disproportionate weight
to particular factors while ignoring others.4
We apply the abuse of discretion standard to review a
trial courts decisions relating to appointment of a child custody
investigator and admission of the investigators report into
evidence.5
IV. DISCUSSION
A. It Was Error To Decline To Strike the Custody
Investigators Report After It Was Revealed that the
Investigator Had a Social Relationship with the Fathers
Counsel.
In November 2003, as part of the divorce proceedings,
the court ordered a custody investigation. Under Alaska Rule of
Civil Procedure 90.6(a) the superior court may appoint an expert
. . . to investigate custody, access, and visitation issues and
provide an independent opinion concerning the childs best
interests. The court-appointed custody investigator, Susan Arth,
submitted a report with her recommendations on March 9, 2004.
The court followed Arths recommendations and granted Bob sole
legal and primary physical custody of the couples daughter. In
addition, the court explicitly adopted certain recommendations
from Arths report, including the provision that the child never
be left alone with her brothers.
On July 25, 2005, Bobs counsel, Kathleen Weeks, moved
for Arths reappointment to the case to conduct an updated
investigation. Although Arth had moved out of state after her
first investigation, Weekss affidavit stated that Arth has
indicated a preliminary willingness to do this on an expedited
basis and anticipates being in the Anchorage area sometime in
August. Dannielle initially opposed Arths reappointment.
Dannielle reasoned that Arths initial investigation was too
costly, Arth had since moved out of state, and Arth would be
rushed during her short time in Anchorage and forced to rely on
preconceived notions. Dannielle further asserted that she was
bothered by the appearance given by Plaintiff and/or his attorney
having been in contact with Arth in advance of making the motion.
The court signed an order denying Bobs motion to reappoint Arth.
Dannielle ultimately withdrew her objection to Arths
reappointment, conceding that such an appointment was well-
warranted given the developments in this case over the past
several months. The court reappointed Arth in January 2006.
Arth issued her custody report in May 2006 and
testified at the trial court proceedings in September 2006.
During cross-examination, Arth revealed that Weeks was part of a
group of 10 people who [Arth] went on a tour of Peru with. The
trip occurred in the summer of 2004, which was after Arths
initial custody report but before her reappointment to the case.
Arth did not reveal her contact with Weeks to the court because,
as she stated, I didnt see any need to. If I had, I would have.
Certainly the fact that we went on this tour together has no
impact on whether I believe Mr. or Mrs. Banks is better able to
meet [the childs] needs. Arth further testified that she
organized the tour and solicited Weeks to attend the trip because
she needed a minimum of ten people to join the tour and Weeks had
previously expressed an interest in traveling to Peru. Based on
this failure to disclose, Dannielle moved to strike Arths report,
citing Rule 90.6(c). The court denied Dannielles motion.
Rule 90.6(c) provides: The custody investigator shall
disclose any relationships or associations between the
investigator and any party which might reasonably cause the
investigators impartiality to be questioned. This disclosure
must be made no later than 10 days after appointment. We have
only examined Rule 90.6 on a few occasions and never subsection
(c), the subsection at issue here.6
We examine first whether Arths relationship with Weeks
is covered by Rule 90.6(c), a question that turns on whether
Arths travel with Weeks qualifies as a relationship between Arth
and any party. Rule 90.6 requires disclosure if the custody
investigator has a relationship or association with any party.
Our case law offers little guidance on this question. We have
previously examined the definition of the word party in the
context of judicial disqualification. In Blake v. Gilbert,7 we
declined to find an abuse of discretion in the failure of a judge
to recuse himself from a case in which a defendant was a business
partner of the judges nephew.8 After analyzing divergent case
law from other jurisdictions about the construction of the term
party, we declined to extend party status to the judges nephew
because the outcome of the case would only indirectly affect [the
judges nephews] interest.9
Unlike Blake where the lawsuit only indirectly
threatened a partys interest here the parties faced a more
direct threat that their interests would be affected. Although
Dannielle concedes that [i]t is plain on its face that a partys
attorney is, by definition, not a party, we conclude that this
personal association between the custody investigator and Bobs
attorney could directly affect Arths recommendations and
therefore have a direct effect on the parties.
Having established that Rule 90.6(c) applies, our
inquiry now turns to whether Arth violated the rule by failing to
apprise the superior court of her association with Weeks, and
whether this relationship reasonably brings into question Arths
impartiality. We previously examined this question in the
context of a custody investigator who publicly proclaimed herself
an advocate for mothers. In Ogden v. Ogden,10 the appellant
father in a child custody case argued that the custody decision
should be reversed and the child custody investigator should be
disqualified because the investigator demonstrated bias by
advertising herself as a Voice for Women and Children.11 We
agreed that the advertisement created an appearance of bias, but
upheld the superior courts decision because it was clear that it
was based on the evidence introduced at trial rather than the
investigators report.12 We explicitly noted that a
court-appointed child custody investigator is ordinarily subject
to disqualification upon a showing of either actual or apparent
bias.13
Rule 90.6(c) required Arth to disclose within ten days
of her appointment any relationship that could bring her
impartiality into question. Even if Arths investigation, as she
testified, was not biased by her travels with Weeks, she was
still obligated to reveal that relationship because it could lead
to the appearance of bias. As Ogden reasoned: [T]he litigants
initial suspicions [of bias] would be likely to jeopardize the
reliability of the investigation; for the effectiveness of the
process itself largely depends on the confidence and trust of all
interested parties.14 For this reason, after-the-fact judicial
determination of the experts neutrality does not repair the
original damage and cannot excuse the initial failure to
disclose. We therefore conclude that it was error to fail to
strike the custody investigators report when her relationship
with counsel for one of the parties was disclosed.
B. There Was Sufficient Evidence, Aside from the Custody
Investigators Report, To Support Granting Custody of
the Couples Daughter to the Father.
In making its custody determination, the superior court
relied on Arths report as well as witness testimony and medical
records. Because we hold above that it was error to admit the
custody investigators report and to rely upon its
recommendations, we examine this issue without reference to Arths
report and by looking only to other evidence presented at trial.15
1. The courts detailed analysis and thorough findings
considered without reference to the Arth report
supported its conclusion that Bob should have sole
legal custody.
Alaska Statute 25.24.150(c) instructs courts to
determine custody by considering nine best interest factors.16
The superior court examined each of these nine factors. For each
factor it described the pertinent facts and analyzed whether the
factor favored Bob, Dannielle, or neither parent. The courts
best interest findings were thorough and careful; we conclude
that the court did not err in its analysis.
The courts detailed analysis of all the best interest
factors led it to conclude that each factor either favored
granting custody to Bob or did not favor either party. Of the
three factors that favored Bob the three that Dannielle
challenges in her appeal the court supported its analysis with
evidence in the record.
The courts most extensive analysis dealt with the
ability of each parent to meet the childs emotional needs. The
court found that the most significant factor in weighing the
parties respective abilities to provide for [the childs] physical
safety and emotional well being arises from [Dannielles sons]
mental health histories. Dannielle contends that the court erred
by relying on this evidence because it was presented through
Arths report. Although Arths report covers the history of the
boys illnesses in great detail, their mental health and
behavioral difficulties were presented elsewhere during the
trial. In fact, much of the information about the boys behavior
was presented during Dannielles testimony. For instance, the
court noted that since the 2004 custody order both boys had been
hospitalized at North Star Hospital for their troubling
psychiatric disorders. Dannielle testified to this fact in the
hearing. The court admitted the boys medical records as
exhibits. In addition, Dr. Michael Robertson, a licensed
psychiatrist from the North Star Hospital who treated Dannielles
sons, testified regarding his treatment of the boys. Dannielles
mother testified that she witnessed Dannielles older sons
sexualized behavior and that she had seen the younger boy bite
his brother. While both Dannielles mother and Dr. Robertson
testified that the boys do not present a risk of harm to their
sister, they still offered sufficient evidence for the court to
conclude that the boys behavioral difficulties may make it
difficult for Dannielle to provide a safe and emotionally
supportive environment for her daughter while also attempting to
handle her sons. The court thus did not clearly err on this
issue.
The court also found that the stability and continuity
factor favored Bob. While Dannielles living situation at the time
of trial was stable, the court noted that she had a history of
unstable living situations. Dannielle contends that the court
erred in its conclusion because Bobs move to Kodiak, away from
Anchorage where the two parties were able to share custody,
demonstrates that Dannielle offered a more stable and continuous
environment for her daughter. But the court had ample evidence
to reach the opposite conclusion: that Bob would be able to
provide a more stable and continuous living situation for the
child. Before moving to Kodiak, Bob had lived in the same house
since before the childs birth. Bob testified that he intends to
stay in Kodiak for an extended period to raise his daughter, and
his purchase of a chiropractic business there supports his
intention to establish roots in the community. Dannielle, even
though currently in a stable living environment (she has
remarried), had previously maintained a more itinerant lifestyle.
These facts are supported by evidence independent of Arths second
report. For example, Arths initial custody report, which has not
been challenged and which was adopted by the courts initial
custody determination, noted that Dannielle had lived in four
residences in the preceding five years and had worked for six
employers in five years.
Finally, the court found that the substance abuse
factor favored Bob because [t]he concerns regarding [Dannielles]
substance abuse are more significant than the history of [Bobs]
substance abuse, primarily because the evidence establishes that
[Dannielle] has abused alcohol since the time she completed
alcohol treatment. Dannielle counters that the court erred on
this issue because it found that there was no evidence of alcohol
abuse since 2005. She contends that the superior court further
erred by finding this a strike against her when Sharol Ledin
Bobs current girlfriend and occasional child care provider for
his daughter also drinks occasionally despite admitted past
alcohol abuse. The evidence supports the superior courts
conclusion. Dannielle admitted that she had reported to her sons
doctor that even after ending her substance abuse treatment she
was drinking more to help her sleep. She also testified that she
received the treatment she was required to receive by the courts,
but no longer attends Alcoholics Anonymous meetings now that she
has fulfilled her requirements. Ledin, also an admitted
recovering alcoholic, testified to voluntary treatment,
infrequent drinking, and continued attendance at Alcoholics
Anonymous meetings. Because Dannielle has a high burden to
overcome, and because there is evidence independent of Arths
report to support the courtss findings, the court did not clearly
err by concluding that this factor favors Bob and that Dannielles
substance abuse problems pose more of a threat than Ledins.
Of the three factors that the court found favored Bob,
the court had ample evidence beyond Arths report to support its
conclusion. The court supported its findings with this evidence
apart from the evidence in Arths report, and therefore had
sufficient grounds to reach these conclusions.
2. The court did not err in granting Bob sole legal
custody despite Alaskas preference for joint legal
custody.
The court awarded Bob sole legal custody of his
daughter, finding that [t]he parties ability to cooperatively
communicate has not improved since the time of the original
order. Dannielle contends that the court erred in granting Bob
sole legal custody in light of Alaskas preference for granting
parents joint legal custody. Dannielle concedes that she and Bob
continue to have communication difficulties, but argues that the
court erroneously ignored the best interest factors in making its
custody determination.
The court stated that the situation had not improved
since the time of the original order. That 2004 order found:
The parties have not done well communicating during the interim
period, even about concerns related to their daughter . . . .
The number of interim issues brought to the court for resolution
was atypical, and does not bode well for the parties ability to
effectively communicate and cooperate in the short term.
As Bob correctly notes, joint legal custody depends in
large part on the ability of the parents to communicate.17
Dannielle concedes that communication between the two, which was
poor at the time of their divorce, has not improved. Therefore,
the court did not abuse its discretion by granting Bob sole legal
custody of the child.
V. CONCLUSION
It was error to admit the custody investigators report.
That error, however, was harmless as the superior court had ample
other evidence to support its conclusion. It therefore did not
err in granting Bob sole legal and primary physical custody of
the parties daughter. We accordingly AFFIRM the judgment of the
superior court.
_______________________________
1 Bobs deal with the Sitka chiropractic office fell
through and he then decided instead to buy a practice in Kodiak.
2 Harvey v. Cook, 172 P.3d 794, 797 (Alaska 2007).
3 Thomas v. Thomas, 171 P.3d 98, 102 (Alaska 2007).
4 Id. (internal citations omitted).
5 Ogden v. Ogden, 39 P.3d 513, 516 (Alaska 2001).
6 Only four Alaska cases discuss Rule 90.6. Iverson v.
Griffith, 180 P.3d 943, 947-48 (Alaska 2008) (referencing Rule
90.6(a) and discussing appointment of child custody
investigator); Keller v. Reft, 71 P.3d 800, 809-10 (Alaska 2003)
(discussing Rule 90.6(i), which requires parties to split costs
for custody investigators unless court finds good cause to change
this allocation); In re Adoption of L.E.K.M., 70 P.3d 1097, 1105
(Alaska 2003) (referencing Rule 90.6(b) and (g), and discussing
custody investigators qualifications and alleged ex parte
contacts); R.M. v. S.G., 13 P.3d 747, 752 n.15 (Alaska 2000)
(referencing Rule 90.6(a) and finding that custody investigators
are akin to experts).
7 702 P.2d 631 (Alaska 1985) (overruled on other
grounds).
8 Id. at 640-41.
9 Id. at 641 (emphasis in original).
10 39 P.3d 513.
11 Id. at 515.
12 Id. at 517.
13 Id. at 516-17.
14 Id. at 517.
15 Dannielle requests a remand for a new consideration of
the modification motion without the child custody investigators
report or evidence. She does not seek a direction to the trial
court to appoint a new child custody investigator or to hold a
new hearing. Thus, we conclude that our own review of the record
without the child custody investigators input is appropriate.
16 These factors include:
(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
preference;
(4) the love and affection existing between
the child and each parent;
(5) the length of time the child
has lived in a stable,
satisfactory environment
and the desirability of
maintaining continuity;
(6) the willingness and ability of each
parent to facilitate and encourage a close
and continuing relationship between the other
parent and the child, except that the court
may not consider this willingness and ability
if one parent shows that the other parent has
sexually assaulted or 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;
(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; and
(9) other factors that the court considers
pertinent.
17 See Farrell v. Farrell, 819 P.2d 896, 899-900 (Alaska
1991) ([J]oint legal custody is only appropriate when the parents
can cooperate and communicate in the childs best interest.).
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