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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Wee v. Eggener (3/12/2010) sp-6461
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
| JHYSHAIN WEE, | ) |
| ) Supreme Court No. S- 13465 | |
| Appellant, | ) |
| ) Superior Court No. 3AN-08- 4371 CI | |
| v. | ) |
| ) O P I N I O N | |
| ) | |
| CHARLES EGGENER, | ) No. 6461 - March 12, 2010 |
| ) | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Jack Smith, Judge.
Appearances: Justin Eschbacher and Gary
Eschbacher, Law Offices of G. R. Eschbacher,
Anchorage, for Appellant. Robert C. Erwin,
Robert C. Erwin, LLC, Anchorage, for
Appellee.
Before: Carpeneti, Chief Justice, Fabe,
Winfree, and Christen, Justices.
WINFREE, Justice.
I. INTRODUCTION
Following a five-day custody trial between unmarried
parents regarding their young son, the trial court found that the
father has a history of domestic violence. It nonetheless
awarded shared physical custody and temporary joint legal
custody, deferring final determination of legal custody for one
year. When issuing its oral findings and conclusions, the trial
court also granted the fathers request for a mutual no contact
order.
The mother appealed the trial courts awards of
temporary joint legal custody and shared physical custody. She
argued that a court may not award any type of custody to a parent
who has a history of domestic violence unless the statutory
presumption against custody is overcome, and that the court
failed to find the father had overcome that presumption. She
also appealed the trial courts deferral of final legal custody,
its award of unsupervised visitation to the father, and the
mutual no contact order.
After oral argument, we issued an order: (1) vacating
the trial courts order awarding shared physical custody and
temporary joint legal custody to the father; (2) vacating the
shared physical custody schedule ordered by the trial court;
(3) remanding limited jurisdiction to the trial court to
establish a reasonable unsupervised visitation schedule for the
father; and (4) vacating the mutual no contact order as it
applied to the mother contacting the father. We now explain the
basis for our decision.
II. FACTS AND PROCEEDINGS
A. Facts
Jhyshain Wee and Charles Eggeners son was born in
September 2004. The two have never married, but began cohabiting
when Wee became pregnant. Within a few months of their sons
birth their relationship became strained and plagued with abuse
accusations.
Wee reported that the relationship deteriorated due to
verbal and physical abuse Eggener directed towards her. In July
2006 one such incident led to a long-term protective order
against Eggener. Wee claimed she sought that protective order
after Eggener grabbed her, causing a large bruise on her upper
arm. Wee explained Eggener grabbed her when she attempted to
leave the house during one of his rage outburst[s]. Two weeks
after obtaining the protective order, Wee modified it to allow
Eggener contact with their son. And two months after obtaining
the protective order, Wee rescinded or asked for a dismissal of
the proceedings.
Wee also detailed a January 2007 incident when Eggeners
escalating anger frightened her, and out of concern for her
safety and that of their son, she attempted to dial 9-1-1. Wee
claimed Eggener disconnected the call, pushed her onto the bed,
and restrained her movement. Eggener confirmed he took the phone
out of Wees hand and hung it up. But Eggener claimed he had been
unaware Wee actually had dialed 9-1-1, because she often picked
up the phone and threatened to call for help without dialing any
number.
Wee testified that Eggener often physically restrained
her, as during the January 2007 incident or when she would
threaten to leave the house with their son or call for help after
tiring of Eggeners shouting. Wee claimed that while restraining
her, Eggener would shout at her for periods of five to fifteen
minutes, sometimes when their son was watching. She claimed this
sort of incident happened about three or four times a month.
Eggener admitted that he and Wee argued when their son
was young, but he blamed the arguments on his desire to increase
Wees involvement in their sons life and in household chores.
Eggener testified that during these arguments Wee would threaten
to take their son and leave the country, to go to a shelter, or
to call the police and claim Eggener physically abused her.
Eggener estimated that Wee made threats like these at least twice
a week. Eggener also claimed Wee twice threatened to kill their
son.
According to Eggener, Wee became depressed around
December 2007. Eggener thought that about that time their son
began preferring Eggeners company to Wees, contributing to Wees
depression. During this time Wee told Eggener she thought he
might be sexually abusing their son. Although Eggener claimed
this allegation was unfounded, Wee went to the Office of
Childrens Services (OCS) and alleged Eggener was sexually abusing
their son. Wee then filed for a protective order against Eggener
on behalf of her son based on the abuse allegation. At the same
time, Wee filed for a protective order against Eggener on her own
behalf.
In early January 2008 the superior court granted Wees
motion on behalf of the son for a twenty-day ex parte protective
order against Eggener. At the subsequent hearing Wee withdrew
the sons motion for a long-term protective order but pursued her
own domestic violence protective order against Eggener. The
court granted Wees motion for a domestic violence protective
order against Eggener based on the order granted in 2006, finding
that she was still in fear. The court also ordered a 4/3, 3/4
custody schedule.
B. Proceedings
In early 2008, shortly after Wee filed for the domestic
violence protective orders, Eggener filed a complaint for sole
legal and primary physical custody of their son. Wee countered
with her own request for sole legal and primary physical custody.
On December 30, 2008, after a five-day trial, the trial court
entered its custody orders.
The trial court first found that: the childs
relationship with each parent was loving and affectionate; both
parents were capable of providing for the childs needs; and the
child had spent his whole life with both parents. The court also
found there was no evidence that substance use affects the childs
well-being.
The trial court stressed that the custody case focused
on two issues Eggeners alleged child sexual abuse and domestic
violence. With regard to the former, the court found Wee failed
to prove that any sexual abuse had occurred or that the child was
in danger in that regard. The court then addressed Wees claim
that Eggener has a history of domestic violence under AS
25.24.150(g) and (h).1
The trial court noted Eggener had two domestic violence
orders entered against him, one in 1994 and one in 2006.2 The
trial court noted that it had granted the 2008 order based on the
prior granting of the 2006 domestic violence protective order
finding that [Wee was] still in fear. The trial court stated it
must consider all incidents of domestic violence, but the age and
nature of each incident would influence its finding. Considering
those factors, the trial court found the 1994 incident attenuated
by age, yet it ha[d] some weight in determining this case. The
trial court noted that the incident, which involved Eggener
restraining his teenage daughter, was consistent with the 2006
incident involving Eggener restraining Wee. The trial court also
found Eggeners actions in January 2007, when he disconnected Wees
9-1-1 call and restrained her, constituted domestic violence.
Because these examples demonstrated Eggener engaged in multiple
domestic violence incidents, the trial court found by a
preponderance of evidence that Eggener has a history of domestic
violence under AS 25.24.150(h).3 The trial court ordered Eggener
to complete a state-approved domestic violence course and a
parenting course.
Applying AS 25.24.150(j)4 the trial court found by a
preponderance of evidence that Eggener did not abuse alcohol or
psychoactive drugs or pose a danger of mental or physical harm to
[his son]. The trial court then found that unsupervised
visitation [was] in the childs best interests and ordered Eggener
and Wee to continue the existing 4/3, 3/4 custody schedule.
The trial court awarded shared physical custody but
deferred determining legal custody for one year, requiring the
parents to submit to binding arbitration for non-emergency
medical and educational decisions regarding their son. The trial
court ordered temporary joint legal custody in the interim.
During the oral decision, Eggener requested, and the trial court
granted, a mutual civil no contact order between Wee and Eggener,
except for issues concerning their son.
Wee filed a motion for reconsideration, arguing the
trial court erred by ordering a mutual no contact order and joint
legal custody with the requirement of arbitration. In response
to that motion, the trial court affirmed the mutual no contact
order but deleted the requirement of binding arbitration in its
custody order.
Wee appealed the trial courts decisions regarding
custody, visitation, and the mutual no contact order. Shortly
after oral argument, we issued an order addressing Wees appeal.
We vacated: (1) [t]hose portions of the trial courts . . . order
granting shared physical custody and temporary joint legal
custody to . . . Eggener; (2) the shared physical custody
schedule; and (3) the mutual no contact order as it applied to
Wees ability to contact Eggener. We remanded limited
jurisdiction to the trial court to establish a reasonable
unsupervised visitation schedule for . . . Eggener, based on Wee
having sole legal and primary physical custody of their son.
This opinion explains the basis for our order.
III. STANDARD OF REVIEW
A trial court has broad discretion in deciding child
custody issues.5 We review a trial courts child custody decision
for abuse of discretion and review underlying factual findings
for clear error.6 Abuse of discretion in child custody cases
occurs when a trial court considers improper factors or
improperly weighs factors in its decisional process.7 We find
clear error when, after review of the entire record, we are left
with a definite and firm conviction a mistake occurred.8 But we
grant particular deference to the trial courts factual findings
when they are based primarily on oral testimony, because the
trial court, not this court, performs the function of judging the
credibility of witnesses and weighing conflicting evidence.9 We
review questions of law, such as whether the trial court applied
the correct legal standard, de novo.10
IV. DISCUSSION
A. It Was Error To Order Temporary Joint Legal Custody and
Shared Physical Custody After Finding Eggener Has a
History of Domestic Violence Without Addressing the
Presumption Against Custody in AS 25.24.150(g).
In 2004 the legislature added several subsections to
the child custody statute, AS 25.24.150.11 One of the additions,
subsection (g), creates a rebuttable presumption against awarding
sole or joint legal or physical custody to a parent who has a
history of perpetrating domestic violence against the other
parent. 12 Under AS 25.24.150(h), another 2004 addition to the
child custody statute, [a] parent has a history of perpetrating
domestic violence if the parent caused serious physical injury
during a domestic violence incident or has engaged in more than
one incident of domestic violence.13
Alaska Statute 25.24.150(g)s presumption against
custody may be overcome if a parent with a history of domestic
violence: completes an intervention program for batterers, when
reasonably available; does not engage in substance abuse; and the
childs best interests require that parents participation as a
custodial parent . . . .14 If the presumption is not overcome, AS
25.24.150(g) prohibits awarding the perpetrating parent any type
of custody.15
Here the trial court found Eggener has a history of
domestic violence but failed to address AS 25.24.150(g)s
presumption against custody. We have explained that the path
charted in subsection .150(g)-(i) must be followed when a court
finds one parent has a history of domestic violence.16 The trial
courts custody awards cannot be sustained, and we therefore
vacated the trial courts award of temporary joint legal custody
and shared physical custody to Eggener, along with the 4/3, 3/4
shared physical custody schedule. We do not reach Wees challenge
to the courts deferral of final legal custody because without a
finding that Eggener overcame the presumption against custody, he
has no right to any type of custody. Wee has sole legal and
primary physical custody of the child, although Eggener may move
for a change in custody if he can overcome the statutory
presumption against custody.17
B. It Was Not an Abuse of Discretion To Award Eggener
Unsupervised Visitation.
When a court finds a parent has a history of domestic
violence, it generally can grant the perpetrating parent only
supervised visitation.18 But AS 25.24.150(j) outlines an
exception to this general rule a court may award unsupervised
visitation if a preponderance of evidence shows the perpetrating
parent has completed a substance abuse treatment program if the
court considers it appropriate, is not abusing alcohol or
psychoactive drugs, does not pose a danger of mental or physical
harm to the child, and unsupervised visitation is in the childs
best interests.19
After finding Eggener has a history of domestic
violence, the trial court looked to AS 25.24.150(j) and
determined Eggener met the requirements for unsupervised
visitation. The trial court found by a preponderance of evidence
that Eggener does not abuse alcohol or psychoactive drugs, nor
does he pose a danger of mental or physical harm to [his son].
The trial court also found by a preponderance of evidence that
the childs best interests warranted unsupervised visitation by
Eggener.
Wee challenges the trial courts finding that Eggener
does not pose a risk of harm to the child. She argues [t]he
evidence at trial was overwhelming that Mr. Eggener posed a risk
of harm to [their son] given his mental health issues and his
inability to control his anger. To support her argument Wee
cites testimony describing Eggeners past sexual behavior,
potential for alcohol abuse in the future, narcissistic
personality traits, and anger management issues.
Ample testimonial evidence in the record supports the
trial courts finding. Dr. Bruce Smith, who performed a
psychological evaluation of Eggener, testified that the results .
. . do not reflect a concern that [Eggener] is prone to use
physical abuse in his interaction with [his son]. Dr. Smith
concluded there is nothing from [his] data that [he] can rely on
to state that [Eggener] should not be in the role of parent to
his child. Dr. David Wilcox, a clinical psychologist with
expertise in anger management, drug and alcohol issues, and
sexual compulsivity and who also serves as Eggeners therapist,
reached a similar conclusion: I have no new information that
would make me believe that Mr. Eggener shouldnt be able to have
visits with his child, unsupervised visits . . . . The custody
investigator, Elizabeth Still, also recommended unsupervised
visitation, suggesting she did not believe Eggener posed a risk
of harm to his son.
Based on this evidence, the finding that Eggener does
not pose a risk of harm to his son is not clearly erroneous. And
conflicting evidence does not by itself indicate an abuse of
discretion.20 For these reasons, we affirm the trial courts
unsupervised visitation award to Eggener; we have already
remanded limited jurisdiction to the trial court to determine a
reasonable unsupervised visitation schedule for Eggener.
C. It Was an Abuse of Discretion To Issue the Mutual No
Contact Order Because the Order Was Not Supported by an
Independent Basis Against Wee and Conflicts with Public
Policy.
Eggener requested and was granted a mutual no contact
order while the court was issuing its oral decision. The trial
court noted Wee had contacted Eggener throughout the 2006
domestic violence protective order and without a mutual order
Eggener was set[] . . . up for failure. In response to Wees
motion for reconsideration, the trial court affirmed its mutual
no contact order based upon the conduct of [Wee] throughout the
relationship.
Wee argues the entry of the mutual no contact order was
an abuse of discretion because the trial court did not find Wee
had committed any acts of domestic violence against Mr. Eggener,
nor in any way posed a danger to Mr. Eggener. Eggener responds
that the mutual no contact order is within the inherent power of
the court and should be affirmed.21
The legislature has expressed a policy against issuing
mutual no contact orders in a domestic violence proceeding: [a]
court may not grant protective orders against the petitioner and
the respondent in the same action under [the Domestic Violence
and Sexual Assault] chapter.22 We have stated that this policy
applies in divorce litigation when only one partner has committed
acts of domestic violence,23 and we now extend this policy to
divorce-like litigation between unmarried couples when only one
partner has committed acts of domestic violence. In addition to
social concerns underlying this policy,24 unwarranted mutual
orders in divorce-like settings may create enforcement problems
because police will not know whose conduct prompted the order,
who is actually afraid of being seriously hurt, or how to
proceed.25
In Cooper v. Cooper we addressed a challenge to the
factual basis for a mutual restraining order.26 The superior
court had issued a mutual restraining order, upon the husbands
request, based on safety concerns expressed by both parties and
the high level of animosity and distrust exhibited throughout the
litigation.27 On appeal the wife challenged the orders mutuality,
claiming the court lacked a factual basis for imposing a
restraining order against her.28 We quoted Siggelkow v. State for
the rule that where an independent basis exists for a restraining
order, it may issue pursuant to the courts equitable power. 29
But we also stated that when a court imposes a mutual restraining
order, an independent basis for the order must exist with respect
to each party.30 We further explained that neither an expression
of concern by the parties nor a general acknowledgment of
animosity and distrust creates an independent basis for an order.31
We concluded that the restraining order against the wife lacked a
specific factual basis to support a belief that the wife would
commit future harassment or contact, and held that the superior
court had abused its discretion by issuing a mutual restraining
order.32
Although Cooper addressed a mutual restraining order
issued during a divorce proceeding, it relates directly to Wees
contention that there was no factual basis for the trial court to
issue a no contact order against her. Neither the trial courts
findings nor the evidence presented at trial indicates Eggener is
or has been a victim of a crime involving domestic violence.33 In
accordance with Cooper, Eggeners expression of concern that Wee
may contact him is insufficient to establish an independent basis
for a protective order.34 It was therefore an abuse of discretion
to issue a mutual no contact order lacking an independent factual
basis against Wee.35
On the other hand, a specific and independent factual
basis supported the portion of the no contact order prohibiting
Eggener from contacting Wee the trial court found Wee had been a
victim of Eggeners domestic violence, and the trial court entered
the no contact order because Wees domestic violence protective
order against Eggener was scheduled to expire soon.
For these reasons we vacated the mutuality of the no
contact order preserving the no contact order as it applies to
Eggener, but eliminating the no contact order as it applies to
Wee.
V. CONCLUSION
As provided in our earlier order, we VACATE the trial
courts order granting temporary joint legal custody and shared
physical custody to Eggener, we VACATE the 4/3, 3/4 shared
physical custody schedule, and we VACATE the portion of the
mutual no contact order prohibiting Wee from contacting Eggener.
The trial courts award of unsupervised visitation to Eggener is
AFFIRMED, but we REMAND for the trial court to establish a
reasonable visitation schedule for Eggener based on the
statutorily required grant of sole legal and primary physical
custody to Wee.
_______________________________
1 AS 25.24.150(g) and (h) state:
(g) There is a rebuttable presumption that a
parent who has a history of perpetrating
domestic violence against the other parent, a
child, or a domestic living partner may not
be awarded sole legal custody, sole physical
custody, joint legal custody, or joint
physical custody of a child.
(h) A parent has 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. The
presumption may be overcome by a
preponderance of the evidence that the
perpetrating parent has successfully
completed an intervention program for
batterers, where reasonably available, that
the parent does not engage in substance
abuse, and that the best interests of the
child require that parents participation as a
custodial parent because the other parent is
absent, suffers from a diagnosed mental
illness that affects parenting abilities, or
engages in substance abuse that affects
parenting abilities, or because of other
circumstances that affect the best interests
of the child.
2 Eggeners ex-wife obtained the 1994 order after an
incident during an exchange of their teenage daughter.
3 AS 25.24.150(h) describes two ways in which a parent
can be found to have a history of domestic violence: (1) the
parent engaged in one incident of domestic violence that led to
serious physical injury or (2) the parent has engaged in multiple
incidents of domestic violence. See note 1, above.
4 AS 25.24.150(j) states:
(j) If the court finds that a parent has a
history of perpetrating domestic violence
under (g) of this section, the court shall
allow only supervised visitation by that
parent with the child, conditioned on that
parents participating in and successfully
completing an intervention program for
batterers, and a parenting education program,
where reasonably available, except that the
court may allow unsupervised visitation if it
is shown by a preponderance of the evidence
that the violent parent has completed a
substance abuse treatment program if the
court considers it appropriate, is not
abusing alcohol or psychoactive drugs, does
not pose a danger of mental or physical harm
to the child, and unsupervised visitation is
in the childs best interests.
5 Millette v. Millette, 177 P.3d 258, 261 (Alaska 2008)
(citing Jenkins v. Handel, 10 P.3d 586, 589 (Alaska 2000)).
6 Jaymot v. Skillings-Donat, 216 P.3d 534, 538 (Alaska
2009) (citing Millette, 177 P.3d at 261).
7 Id. at 538-39 (quoting Millette, 177 P.3d at 261).
8 Dingeman v. Dingeman, 865 P.2d 94, 96 (Alaska 1993)
(quoting Brosnan v. Brosnan, 817 P.2d 478, 480 (Alaska 1991))
(emphasis and internal quotation marks omitted).
9 Millette, 177 P.3d at 261 (quoting Ebertz v. Ebertz,
113 P.3d 643, 646 (Alaska 2005)) (internal quotation marks
omitted).
10 Harvey v. Cook, 172 P.3d 794, 797 (Alaska 2007) (citing
Ebertz, 113 P.3d at 646).
11 Ch. 111 5, SLA 2004; Puddicombe v. Dreka, 167 P.3d 73,
77 (Alaska 2007); see generally Lisa Bolotin, Note, When Parents
Fight: Alaskas Presumption Against Awarding Custody to
Perpetrators of Domestic Violence, 25 Alaska L. Rev. 263, 272-87
(2008).
12 Parks v. Parks, 214 P.3d 295, 299 (Alaska 2009)
(quoting AS 25.24.150(g) and citing Puddicombe, 167 P.3d at 77);
see Bolotin, note 11, above at 287-89 (noting AS 25.24.150(g)
ensures that courts consider the existence of domestic violence
in making custody decisions).
13 AS 25.24.150(h); see also Parks, 214 P.3d at 299.
14 AS 25.24.150(h); see Michele M. v. Richard R., 177 P.3d
830, 837 (Alaska 2008) (citing Puddicombe, 167 P.3d at 77) (If a
history of domestic violence is found, then the lower court must
test, per AS 25.24.150, whether the presumption against awarding
custody to the parent with a history of abuse has been
overcome.); see Bolotin, note 11, above, at 285.
15 See AS 25.24.150(g).
16 Puddicombe, 167 P.3d at 77.
17 The courts order that Eggener complete a state-approved
domestic violence course implies Eggener had not overcome the
presumption at the time of the custody trial.
18 See AS 25.24.150(j).
19 Id.
20 Cf. Harding v. Harding, 377 P.2d 378, 380 (Alaska 1962)
(citing Chirikoff Island Cattle Corp. v. Robinette, 372 P.2d 791,
794 (Alaska 1962)) (The fact that the award of custody was based
upon extremely conflicting evidence does not of itself show an
abuse of discretion.).
21 We have held that in appropriate circumstances trial
courts may issue no contact orders under their inherent equitable
powers. See Siggelkow v. State, 731 P.2d 57, 61 (Alaska 1987).
We review decisions to grant a mutal no contact order for abuse
of discretion. See Cooper v. Cooper, 144 P.3d 451, 454 (Alaska
2006) (citing State v. Kluti Kaah Native Vill. of Copper Ctr.,
831 P.2d 1270, 1272 n.4 (Alaska 1992)).
22 AS 18.66.130(b). AS 18.65.530 expresses a similar
policy by discouraging arrest of all parties involved in domestic
violence incidents: If a peace officer receives complaints of
domestic violence from more than one person arising from the same
incident, the officer should arrest the principal physical
aggressor and may not threaten or suggest the possible arrest of
all persons involved in the same incident in a manner that would
have a tendency to discourage domestic violence reporting. AS
18.65.530(b), (d). Both AS 18.65.530 and AS 18.66.130 were
enacted in 1996 as part of House Bill 314, An Act relating to
domestic violence and to crime victims and witnesses . . . . Ch.
64, 29, 33, SLA 1996.
23 Cooper, 144 P.3d at 459 n.25 (citing AS 18.66.130(b)
and recognizing that mutual restraining orders have come to be
disfavored in domestic violence cases, and stating that this
should carry over to divorce litigation as well when only one
partner has committed acts of domestic violence.).
24 For example, one commentator suggests that rather than
empowering a domestic violence victim, mutual protective orders
restrict, condemn, and isolate the victim. Sandra S. Park, Note,
Working Towards Freedom From Abuse: Recognizing a Public Policy
Exception to Employment-at-Will for Domestic Violence Victims, 59
N.Y.U. Ann. Surv. Am. L. 121, 148 (2003).
25 See Fred G. Zundel & Patrick D. Costello, Domestic
Violence Trends & Topics, 52 Advocate (Idaho), Jan. 2009, 23, 23.
26 144 P.3d at 459.
27 Id. at 454, 459.
28 Id. at 459.
29 Cooper, 144 P.3d at 459 (quoting Siggelkow, 731 P.2d at
61).
30 Id.
31 Id.
32 Id.
33 AS 18.66.100(a); see also AS 18.66.990(3) (defining
domestic violence).
34 See Cooper, 144 P.3d at 459.
35 See id. (holding that because the order lacked an
independent basis, it was an abuse of discretion to issue the
mutual restraining order). Although a domestic violence
protective order cannot be entered against Wee, the trial court
is free to pursue other avenues to address any tendency by Wee to
inappropriately contact Eggener.
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