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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Cusack v. Cusack (03/13/2009) sp-6345
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
| GRETCHEN A. CUSACK, | ) |
| ) Supreme Court No. S- 13089 | |
| Appellant, | ) |
| ) Superior Court No. 3AN-98- 3212 CI | |
| v. | ) |
| ) O P I N I O N | |
| ) | |
| JOHN P. CUSACK, | ) No. 6345 - March 13, 2009 |
| ) | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Sen K. Tan, Judge.
Appearances: G. R. Eschbacher, Anchorage,
for Appellant. Kathleen A. Weeks, Anchorage,
for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, and Winfree, Justices. [Carpeneti,
Justice, not participating.]
WINFREE, Justice.
I. INTRODUCTION
Divorced parents dispute custody of their daughter.
The mother appeals the most recent superior court decision
(1) awarding sole legal and primary physical custody to the
father, (2) authorizing the father to send the daughter to
boarding school, and (3) rejecting the mothers request for court-
ordered family therapy. Because the courts findings are not
clearly erroneous and the court did not abuse its discretion, we
affirm.
II. FACTS AND PROCEEDINGS
John and Gretchen Cusack married in May 1988, and their
daughter was born in October 1993. John and Gretchen divorced in
December 1998. The post-divorce custody order issued in 2000 by
Superior Court Judge Sen K. Tan provided for joint legal custody
and for primary physical custody with Gretchen, who was then
living in Colorado. The custody order also provided John regular
visitation in Alaska.
In August 2003 Judge Tan entered an interim
modification order for the daughter to remain in Alaska with John
as the primary physical custodian, providing for visitation with
Gretchen only in the Anchorage area. The order was precipitated
by a letter to the State of Alaska, Division of Family and Youth
Services, from two of the daughters therapists in Colorado. The
letter described the daughters reports of Gretchens violent
outbursts, often involving physical altercations. The letter
also described physical and verbal outbursts between Gretchen and
John in the daughters presence and noted that Gretchen continues
to deny to [the daughter] that the couple is divorced.
Judge Tan appointed a new custody investigator and a
guardian ad litem for the daughter. The custody investigator,
Susan Arth, recommended that John be awarded sole legal custody
and primary physical custody and that Gretchen be granted
visitation. Arth found problems with each parent, but ultimately
concluded that the daughter desperately wants to be with Father
and it would be untenable for the child to be forced to remain in
a situation where her primary relationship is fraught with
stressful conflict. In September 2003 Judge Tan modified the
interim order to give John sole legal and primary physical
custody of the daughter, with visitation for Gretchen. After a
full evidentiary hearing in March 2004, Judge Tan entered a final
order mirroring the September 2003 interim order.
In January 2006 Judge Tan appointed a new custody
investigator, Pamela Montgomery, to determine whether the
visitation schedule should be revised because Gretchen had
returned to Alaska from Colorado. Judge Tan subsequently ordered
a full custody investigation. Montgomerys initial October 2006
report was critical of both parents. She reported that the
daughter described conflicts with Gretchen that escalate into
huge verbal arguments and, at times, physical confrontations.
She also reported her own observation of a confrontation between
Gretchen and the daughter that came close to physical violence.
While also critical of Johns loud and occasionally crass
behavior, she reported that the daughter has done well in her
fathers care.
Montgomery filed another report in May 2007
recommending that the daughter be enrolled in a residential
college-prep boarding school outside of Alaska, and that her
in-person contact with her parents be limited to summers and
school vacations only. Montgomery alternatively proposed:
If the Court and parents dont choose to allow [the
daughter] to disengage from this custody dispute
by attending a boarding school and limiting her
contact with both her parents, then it is
suggested that [she] spend two weeks with her
mother and two weeks with her father during the
school year, half of the summer with each parent,
alternating winter breaks and alternating spring
breaks. During that two week time period, there
would be no in-person contact at all between [the
daughter] and the other parent, and no telephone
contact . . . unless initiated by [the daughter].
In April 2008 Judge Tan ordered that John retain sole
legal custody and primary physical custody, including the
authority to send [the daughter] to boarding school for the
childs educational, emotional, mental and physical benefit.
Judge Tan rejected Gretchens request for court-ordered family
therapy and concluded that Gretchens visitation rights depended
upon whether John chose to send the daughter to boarding school.
A visitation schedule was crafted for each alternative.
Gretchen appeals.
III. STANDARD OF REVIEW
The superior court has broad discretion in its
determination of child custody.1 We will not set aside a lower
courts child custody determination unless its factual findings
are clearly erroneous or unless it abused its discretion.2 We
will set aside a lower courts underlying factual findings as
clearly erroneous only when our review of the entire record
leaves us with a definite and firm conviction that a mistake has
been made. 3 In a child custody case, abuse of discretion is
established if the trial court considered improper factors, or
improperly weighted certain factors in making its determination. 4
IV. DISCUSSION
A. The Superior Court Did Not Abuse Its Discretion by
Granting Sole Legal and Primary Physical Custody to
John.
1. Consideration of statutory factors and evidence
The superior court considered the modification of an
existing award of custody and visitation, an action governed by
AS 25.20.110(a).5 Modification of child custody requires a
determination of the best interests of the child by weighing nine
factors set out in AS 25.24.150(c).6 Gretchen concedes that the
court considered the eight expressly identified factors in the
statute, but argues that the court abused its discretion by not
considering other evidence under the ninth catch-all provision of
the statute.
Gretchen specifically argues that the court should have
considered the need for the mother and child to reunite and
related testimony from Gretchens family therapist and the custody
investigator. Gretchen points to evidence of: (1) the rift
between Gretchen and her daughter; (2) the likelihood that a
rotating physical custody schedule combined with therapy would
help the relationship; and (3) Gretchens commitment to therapy.
Gretchen argues that by not considering this evidence, the court
abused its discretion in reaching its determinations.
The superior courts determination of the daughters best
interests included a discussion of each of the factors specified
in the statute. In its discussion of the second factor (each
parents capability and desire to meet the childs needs) the court
noted the rift between Gretchen and her daughter, but concluded
the testimony of both the custody investigator and Gretchens
therapist suggested that Gretchen and her daughter would be
unlikely to achieve a normal, healthy relationship. The custody
investigator testified she was concerned about the potential for
conflict including physical conflict between Gretchen and her
daughter and that conflict might be exacerbated by a rotating
physical custody schedule. Gretchens family therapist testified
at length about relationship problems between Gretchen and her
daughter. He testified that a two-week rotating physical custody
schedule would benefit the relationship, but also testified to
maybe a fifty-percent chance of success with therapy over a two-
to three-year period. Contrary to Gretchens argument, the court
expressly considered the issue Gretchen has raised and therefore
did not abuse its discretion by failing to separately consider
that issue under the catch-all provision of AS 25.24.150(c)(9).
Gretchen also argues that the superior court erred by
considering the daughters custody preference without first
determining that the daughter had the capacity to form a
preference or specifying how much weight it was giving the
daughters preference. The court did consider the daughters
capacity to form a preference, expressing some doubt about the
independence and integrity of the daughters judgment. But the
custody investigator concluded the daughter was mature enough to
express a preference, and in 2004 the court had found the
daughter was sufficiently mature to express a preference. If
anything, the courts expression of doubt regarding the daughters
judgment suggests that it gave her preference less weight than it
otherwise might have. Given the courts previous assessment and
the custody investigators conclusion that the daughter had the
capacity to express a preference, it was not error for the court
to consider the daughters preference.
Gretchen argues that the superior court gave too much
weight to the custody investigators testimony and failed to
consider the testimony of the family therapist who had been
seeing both Gretchen and her daughter. Gretchen suggests that
when [the custody investigators] testimony is viewed in the
context of the entire trial record, the trial courts reliance on
that testimony is erroneous and ignores the basic needs of a
child-parent relationship and its importance. But Gretchen also
argues that the superior court did not follow the recommendations
of [the] custody investigator. It is unclear from Gretchens
briefing whether she believes the court gave too much weight to
the custody investigators report and testimony, or insufficient
weight.
The court did rely heavily upon the findings of the
custody investigator, but the record does not suggest the court
gave the custody investigators findings more deference than they
were due. The custody investigator spent significant time and
energy compiling thorough reports on this family, and the court
relied upon these reports because they were the product of a
lengthy and impartial investigation. We have noted that a trial
court need not credit every witnesss testimony equally, provided
that the evidence as a whole supports the courts decision. 7
Because the evidence supports the courts conclusions, reliance on
the custody investigators findings was not erroneous.
2. Legal and primary physical custody
Gretchen argues that the superior court erred in not
awarding joint legal custody and that this case should be an
exception to the general rule that joint legal custody is
inappropriate if the parents cannot communicate effectively. The
exception is warranted, Gretchen argues, because much of the
fault for the parents inability to communicate lies with John and
because she would otherwise have no input about parenting
decisions.
Gretchen claims the court simply ignored the issue of
custody and focused on visitation. In fact the court found that
changed circumstances supported consideration of a modification
to the custody award as well as to the visitation schedule, but
ultimately decided that a change of custody was not warranted
because [t]he parents still do not communicate well enough for
this court to revisit the issue of legal custody.
Both parties acknowledge that joint legal custody
requires the parents to be able to cooperate in the making of
decisions regarding a minor child.8 The parties agree that they
do not have good communication, a conclusion with substantial
support in the record. In light of the parents inability to
communicate or to act appropriately with one another and with
professionals involved in the daughters care, awarding sole legal
custody to John was not error.9
B. The Superior Court Did Not Abuse Its Discretion by
Refusing To Order Family Therapy.
Gretchen argues that the superior court abused its
discretion when it did not order additional family counseling and
instead left the decision to John. The consequence of this
decision, Gretchen argues, will be a de facto severance between
mother and child.
We first note there is nothing in the record to
indicate that John intends to discontinue or interrupt the
daughters counseling sessions. But there is ample evidence in
the record to support a conclusion that family therapy sessions
were not working and had minimal chance of success. There is no
significant factual support in the record for Gretchens
proposition that failure to order counseling will result in the
severance of her relationship with her daughter. Instead the
record supports Johns assertions that family therapy sessions had
not been very successful and, specifically, that nine years of
counseling had not much improved Gretchens relationship with the
daughter. The family therapist estimated that there was maybe a
fifty-percent chance of success, but others, including the
daughter and the prior therapists who had worked with the family,
were less optimistic. On this record, it was not an abuse of
discretion for the court to conclude that ordering additional
family counseling sessions was not advisable.
C. The Superior Court Did Not Err or Abuse Its Discretion
when It Authorized John To Enroll the Child in Boarding
School.
Gretchen argues that the superior court erred when it
entered an order allowing John to send the daughter to an out-of-
state boarding school, per the custody investigators
recommendation. Gretchen makes many arguments, but her position
can be condensed to these points: (1) the court erred by
allowing a third party (a boarding school) to have physical
custody of the daughter; and (2) the court erred by limiting
Gretchens access to the daughter. Gretchen also challenges the
custody investigators testimony and recommendation to send the
daughter to boarding school.
The superior court identified the primary issue as
whether giving Mr. Cusack the option of sending [the daughter] to
boarding school implicates the non-party analysis set out in
[Alaska precedent]. (Emphasis in original.) The court observed
that this was a question of first impression in Alaska and looked
to decisions from other jurisdictions. The court noted that:
In the course of daily affairs, parents leave
their children with various caretakers, such
as daycare, schools, sports programs, summer
camps, babysitters, and friends and
relatives. Although such persons have the
child and stand in loco parentis, they do not
have any claim of custody.
The court then concluded that the decision to send the daughter
to boarding school should rest with the sole legal custodian and
primary physical custodian John and issued a custody order
providing alternative visitation guidelines if the daughter went
to a boarding school or if she remained in Anchorage.
The first question presented to us is whether placing a
child in boarding school is the equivalent of giving custody to a
third party. In Evans v. McTaggart we emphasized that a court
must not grant custody to a non-parent absent clear evidence that
a parent is unfit or that his or her custody is clearly
detrimental.10 We agree with the superior court that merely
sending a child to boarding school does not confer legal or
physical custody on the school and does not implicate the
considerations of Evans.
This does not end the inquiry, as Gretchen also claims
that allowing John to send the daughter to an out-of-state
boarding school imposes an other than normal and usual visitation
schedule with the child that is severely restrictive and close to
supervised visitation. Although Gretchen would see less of her
daughter if she goes to a boarding school, half of her summer and
other vacations would still be spent with Gretchen. Other than
the opinion of a single therapist, Gretchen offered no evidence
that this schedule would be detrimental to her relationship with
her daughter. On the other hand, the record is filled with
evidence suggesting that time spent apart from her parents will
benefit the daughter and will ease the way to a healthier
relationship with both parents. The court did not abuse its
discretion by determining that the separation imposed by boarding
school would be in the best interests of the child and fashioning
an accommodating visitation schedule.
III. CONCLUSION
For the reasons stated above, we AFFIRM the superior
courts decision in its entirety.
_______________________________
1 Blanton v. Yourkowski, 180 P.3d 948, 951 (Alaska 2008)
(citing Borchgrevink v. Borchgrevink, 941 P.2d 132, 134 (Alaska
1997)).
2 Id.; Millette v. Millette, 177 P.3d 258, 261 (Alaska
2008).
3 Millette, 177 P.3d at 261 (quoting Dingeman v.
Dingeman, 865 P.2d 94, 96 (Alaska 1993)).
4 Id. (quoting Gratrix v. Gratrix, 652 P.2d 76, 80
(Alaska 1982)).
5 AS 25.20.110(a) provides:
An award of custody of a child or visitation with
the child may be modified if the court determines
that a change in circumstances requires the
modification of the award and the modification is
in the best interests of the child. If a parent
opposes the modification of the award of custody
or visitation with the child and the modification
is granted, the court shall enter on the record
its reason for the modification.
6 Barrett v. Alguire, 35 P.3d 1, 6 (Alaska 2001) (holding
that after a threshold finding of changed circumstances, the
trial court should determine the best interests of the child in
deciding whether to modify a custody award). AS 25.24.150(c)
sets out the factors to be considered in that determination:
(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;
(9) other factors that the court considers
pertinent.
7 Chesser v. Chesser-Witmer, 178 P.3d 1154, 1159 (Alaska
2008) (quoting Ebertz v. Ebertz, 113 P.3d 643, 648 (Alaska
2005)).
8 See, e.g., Lone Wolf v. Lone Wolf, 741 P.2d 1187, 1189
(Alaska 1987) ([C]ooperation between parents is essential if
joint custody is to be in the childs best interest.); Farrell v.
Farrell, 819 P.2d 896, 899 (Alaska 1991) ([J]oint legal custody
is only appropriate when the parents can cooperate and
communicate in the childs best interest.).
9 Gretchen alternatively argues that she should have been
awarded sole legal custody, at least during the periods in which
she is to have physical custody. But as noted above, the record
supports the decision to maintain full legal custody with John.
10 Evans v. McTaggart, 88 P.3d 1078, 1085 (Alaska 2004).
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