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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Osterkamp v. Stiles (6/25/2010) sp-6481
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
| KENNETH M. OSTERKAMP, | ) |
| ) Supreme Court Nos. S- 13297/13317 | |
| Appellant/Cross-Appellee, | ) |
| ) Superior Court No. 3AN-07- 06424 CI | |
| v. | ) |
| ) O P I N I O N | |
| KATTARYNA STILES, | ) |
| ) No. 6481 June 25, 2010 | |
| Appellee/Cross-Appellant. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Jack Smith, Judge.
Appearances: Mary A. Gilson and Allison E.
Mendel, Mendel & Associates, Anchorage, for
Appellant/Cross-Appellee. Robert C. Erwin
and Roberta C. Erwin, Robert C. Erwin, LLC,
Anchorage, for Appellee/Cross-Appellant.
Before: Carpeneti, Chief Justice, Fabe,
Winfree, and Christen, Justices. [Eastaugh,
Justice, not participating.]
CHRISTEN, Justice.
I. INTRODUCTION
Kenneth Osterkamp appeals the award of sole physical
and legal custody of Simon Stiles1 to his adoptive mother,
Kattaryna Stiles. Ken and Kattaryna were Simons foster parents
from one week after Simon was born until Kattaryna adopted Simon
when he was sixteen months old. Ken and Kattaryna continued to
raise Simon together as domestic partners until Simon was twenty
months old, at which point Kattaryna separated from Ken. After
Kattaryna began limiting Kens visitation, he filed a complaint
for custody and visitation. The superior court denied Ken
custody, concluding that he did not meet the substantive
requirements for a third party seeking custody over the objection
of the legal parent. It concluded that between the time
Kattaryna adopted Simon and the time Ken filed suit, Ken had not
established psychological parent status. The superior court did
not reach the question of whether Ken met the substantive
requirements for a third party seeking visitation. We affirm the
superior courts award of legal and physical custody to Kattaryna
because we agree that Ken did not establish by clear and
convincing evidence that awarding sole custody to Kattaryna would
be clearly detrimental to Simon; it was not clearly erroneous for
the superior court to conclude that at the time Ken filed his
complaint he was not Simons psychological parent. Given the
already protracted length of these proceedings, we reach the
merits of the visitation issue and conclude that Ken did not
prove by clear and convincing evidence that it would be in Simons
best interests for the court to order visitation over Kattarynas
objection.
Ken also appeals the superior courts credit of loan
payments to Kattaryna, the award of attorneys fees to Kattaryna,
and the issuance of a writ of assistance without proper notice.
Kattaryna cross-appeals the superior courts order requiring her
to repay money she received from Kens parents. We affirm the
superior courts rulings on property issues and attorneys fees,
but conclude that it was error to issue a writ of assistance
without providing both parties with proper notice and an
opportunity to be heard.
II. FACTS AND PROCEEDINGS
A. Custody And Visitation
Kenneth Osterkamp and Kattaryna Stiles met in the
spring of 2002 and became romantically involved shortly
thereafter. They began living together, first in Kattarynas
apartment and then in a condominium they purchased together in
2003. They bought a home together in late 2004 where they lived
until separating in March 2007. Ken and Kattaryna never
married, but they considered themselves to be domestic partners.
In 2004 Ken and Kattaryna became foster parents
together, successively serving as foster parents to several
infants. On September 1, 2005, the Office of Childrens Services
(OCS) placed Simon with Kattaryna and Ken. Simon was born on
August 25, 2005 and is an Indian child under the Indian Child
Welfare Act (ICWA).2
Ken and Kattaryna began taking steps to adopt Simon in
early 2006, even as they began to experience difficulties in
their relationship. They dispute whether they decided to adopt
Simon as a couple, although a home study for joint adoption was
conducted in spring 2006. Kattaryna claims she always planned to
adopt Simon on her own but a social worker advised putting Kens
name on the home study in case they later decided to adopt
together. Ken claims that the plan was always for joint adoption
and he only agreed to remove his name from the adoption petition
after Kattaryna insisted that they wait and see if their
relationship improved before including his name. Ken and
Kattaryna agreed that if Ken ultimately did not adopt Simon, he
would be like a beloved uncle and continue to have a role in
Simons life. Once it was decided that, at least initially,
Kattaryna would adopt Simon by herself, a second adoption study
was completed taking these changed circumstances into account.
Both adoption studies recommended that the adoption proceed.
On December 28, 2006, the court held an adoption
hearing and issued an adoption decree.3 Simon was sixteen months
old and had spent all but one week of his life living with Ken
and Kattaryna. Ken attended the hearing and did not raise any
objections or concerns over his name not appearing on the
adoption decree. Nor did he request to reserve any post-adoption
rights. After the adoption, Ken, Kattaryna, and Simon continued
to live together as a family unit for three months.
Kattaryna separated from Ken in March 2007 after a
heated argument, but she testified that she had been planning to
leave for many months. The parties initially agreed Ken would
have visitation with Simon but Kattaryna began limiting
visitation to once every two or three weeks, with no overnights.
Kattaryna also forbade Simons social worker and daycare providers
from referring to Ken as dad or father, and forbade Ken from
doing the same.
In April 2007, Ken filed a complaint for joint legal
and physical custody. He claimed that as Simons psychological
father and as someone who had acted in loco parentis for Simon,
he had a right to joint custody. Ken also sought an order
compelling Kattaryna to consent to his joint adoption of Simon.
The superior court ordered interim visitation while the complaint
for custody was pending, but Kattaryna retained sole legal and
primary physical custody. In response to a motion filed by Ken,
the court appointed a custody investigator in June 2007.
In March 2008, eleven months after filing his initial
complaint, Ken filed a motion in limine to determine his standing
to seek custody or visitation. He asked the court to determine
before trial whether he was a psychological parent to Simon. The
court partially granted the motion in April 2008, allowing Ken to
proceed to trial but deferring until trial the question of
whether Ken was Simons psychological parent.
The custody investigator filed a report in June 2008
explaining that it is guesswork to determine whether a person is
a psychological parent to a toddler. But because Ken and
Kattaryna were Simons only caregivers during the first nineteen
months of his life, the investigator concluded one can be fairly
certain that Simon had more or less equal emotional attachments
to each of them. Similarly, a psychological evaluation completed
at the request of the custody investigator observed that Simon
had positive interactions with both Ken and Kattaryna and that
both Ken and Kattaryna demonstrated parental love and affection
towards Simon.
Ken and Kattaryna experienced great difficulty
cooperating with each other to implement the courts visitation
schedule. Kattaryna repeatedly expressed to both the custody
investigator and psychological evaluator that she no longer
wanted Ken in Simons life. This led to conflict, sometimes in
front of Simon.
A bench trial was held in early July 2008. The court
entered an oral ruling on August 22, 2008 awarding Kattaryna sole
legal and physical custody of Simon. Although the superior court
found Ken had established psychological parent status by the time
of trial, the court ruled that the period from the adoption in
December 2006 until the custody suit in April 2007 was the
dispositive time period for purposes of assessing Simons bond
with Ken. The court concluded that Ken was not Simons
psychological parent as of the time the parties separated and Ken
filed his complaint. The court also concluded that Ken had not
shown by clear and convincing evidence that it would be clearly
detrimental to Simon to remain in Kattarynas custody. The court
was silent on Kens claim for visitation rights.
After the court read its oral ruling into the record,
the court, at the suggestion of Kattarynas attorney, discussed
and issued a writ of assistance to Kattaryna to obtain physical
custody of Simon. Because the court had failed to send notice to
the parties informing them when the ruling would be read, Ken and
his attorney were not present during the discussion or issuance
of the writ of assistance; Kattarynas attorney was present
because she noticed the proceeding scheduled on CourtView.4
In October 2008 Ken unsuccessfully requested visitation
pending appeal. He has had no contact with Simon since August
2008.
Ken appeals the superior courts denial of custody as
well as its failure to determine if he met the substantive
requirements for visitation. He also appeals its issuance of a
writ of assistance without proper notice.
B. Property Issues
In 2004 Kens parents gave Kattaryna and Ken $44,000 to
finance the purchase of their home.5 Kens parents issued gift
letters of $22,000 each to Kattaryna and Ken. These letters
purported to require no repayment. Nonetheless, Kattaryna made
monthly payments to Kens parents from October 2005 until February
2007, writing home loan on each check. Ken and his mother
testified that the expectation was for both $22,000 payments to
be paid back, but with no interest and without a deadline for
repayment. Kattaryna argued the $22,000 payment was a gift and
that her monthly payments were made out of moral obligation only.
In its August 2008 oral ruling, the court found that
Kens parents loaned $44,000 to the parties. The court credited
Kattaryna $4,200 for payments she had made on her loan and
ordered her to repay the remaining $17,800. After accounting for
Kattarynas loan payments, Kens home improvements, and the amount
owing on the mortgage, the court found Kattarynas share of the
home equity to be $50,132, and Kens share to be $78,883.75. The
court ordered that the parties refinance the home to remove
Kattaryna from the mortgage obligation, and that they equally
share the cost of refinancing.
Ken appeals the superior court order crediting only
Kattaryna for payments she made to Kens parents. Kattaryna cross-
appeals the superior courts order requiring that she repay a loan
she received from Kens parents.
C. Attorneys Fees
In October 2006 Kattaryna successfully moved for
interim attorneys fees under AS 25.24.140(a)(1), which permits
interim fee awards in divorce or dissolution actions. At trial,
the court found the interim fee award continued to be justified
because Ken was living in the parties home and had a greater
income. Ken appeals the superior courts award of attorneys fees
to Kattaryna.
III. STANDARD OF REVIEW
The superior court has broad discretion in custody
awards.6 We will reverse a superior courts custody and
visitation determination only if the superior court has abused
its discretion or if its controlling findings of fact are clearly
erroneous.7 The superior court abuses its discretion when it
consider[s] improper factors in making its custody determination,
fail[s] to consider statutorily mandated factors, or assign[s]
disproportionate weight to particular factors while ignoring
others.8 We review factual findings, including determinations of
psychological parent status, for clear error.9 A factual finding
is clearly erroneous when a review of the record leaves us with
the definite impression that a mistake has been made.10
Whether factual findings are sufficient to support an
award of custody to a third party is a legal issue to which we
apply our independent judgment.11 Likewise, [w]hether the court
applied the correct standard in a custody determination is a
question of law we review de novo.12
Interim attorneys fee awards in divorce-like
proceedings are reviewed for abuse of discretion.13 We will not
reverse such an award unless it is arbitrary, capricious,
manifestly unreasonable, or stems from an improper motive.14
IV. DISCUSSION
A. The Standing Issue
Prior to trial, Ken filed a Motion in Limine to
Determine Plaintiffs Standing. He asked the court to determine,
before trial, whether he was the psychological parent of [Simon].
The superior court did not decide prior to trial whether Ken was
Simons psychological parent; the court ordered that Ken would
have to prove his case at trial. Because Kattaryna did not
challenge Kens standing to bring a claim for custody or
visitation in her Partial Opposition to Motion in Limine to
Determine Plaintiffs Standing she asked only that the court rule
that former foster parents like Ken could not establish
psychological parent status the superior court never expressly
ruled on the issue of standing. But on cross-appeal before this
court, Kattaryna argues that Ken does not have standing to seek
post-adoption custody or visitation because any rights he may
have had based on his relationship with Simon were terminated
when Kattaryna adopted Simon.
In Buness v. Gillen we considered whether a stepparent
had standing to seek custody over the objection of the biological
parent.15 We held that a non-parent who has a significant
connection with a child has standing to assert a claim for
custody.16 In Evans v. McTaggart we question[ed] whether the
significant connection test was intended to be merely another way
of expressing psychological parent or in loco parentis status,
but we declined to flesh out the meaning of the significant
connection test for standing because the biological father in
Evans had not objected to the maternal grandparents intervention
or custody motion on standing grounds.17 Here, because Kattaryna
did not make a specific negative averment before the superior
court that she wishe[d] to raise an issue as to the capacity of
[Ken] to sue,18 Kattaryna is precluded from raising an objection
to standing on appeal.19
B. The Superior Court Did Not Err By Concluding That Ken
Failed To Establish By Clear And Convincing Evidence
That Awarding Sole Custody To Kattaryna Would Be
Clearly Detrimental To Simon.
Ken concedes that under AS 25.23.130(a)(2) Kattarynas
adoption of Simon resulted in the legal creation of a parent-
child relationship between Simon and Kattaryna as if she were
Simons biological parent.20 We agree; once the adoption decree
was finalized on December 28, 2006, Kattaryna became Simons sole
legal parent. Kens legal relationship to Simon has always been
that of a third party, both before and after Kattarynas adoption
of Simon. The question here is whether Ken, as a third party,
may obtain custody or visitation against the wishes of Kattaryna,
Simons legal parent.
We previously discussed questions of third party
custody and visitation in Evans v. McTaggart.21 Evans involved a
claim by a childs maternal grandparents for custody over the
objections of the childs biological parents.22 The grandparents
also sought visitation with their grandchilds half-sibling who
was not biologically related to them.23 The Evans trial court did
not find the grandparents to be the psychological parents of
either child.24 Addressing the custody issue in Evans, we stated
that:
in order to overcome the parental preference
[in an initial custody contest between a
parent and a non-parent] a non-parent must
show by clear and convincing evidence that
the parent is unfit or that the welfare of
the child requires the child to be in the
custody of the non-parent.25
Ken argues that the superior court erred by concluding that he
did not meet his evidentiary burden for a third party seeking
shared custody. The basis of Kens custody argument is that the
welfare of the child requires that he continue to have contact
with Simon not that Kattaryna is an unfit parent. Our inquiry
therefore focuses on whether Ken was able to meet his evidentiary
burden to show that the welfare of the child requires the child
to be in the custody of the non-parent.26 Kattarynas fitness as a
parent is not in dispute.
We explained the welfare of the child component of this
analysis in Evans, where we decided that to be awarded custody a
non-parent must show that the child would suffer clear detriment
if placed in the custody of the parent.27 We clarify that this
analysis is not limited to examining the childs relationship with
the legal parent; courts may take into account the relationship
between a child and a third party in determining whether awarding
custody to the legal parent and denying custody to the third
party would result in clear detriment to the child.28
The clear detriment Ken alleges is the harm [Simon]
will experience if his relationship with a psychological parent
is ended. Ken cites to our decisions in Buness v. Gillen and
Todd v. Todd in support of this argument. In Buness, we noted
that severing the bond between the psychological parent and the
child may well be clearly detrimental to the childs welfare.29 In
Todd v. Todd, we acknowledged that when a childs strongest
psychological bonding is with third parties, it would be
detrimental to [the child] to destroy those bonds.30
To determine whether Ken met his evidentiary burden to
show clear detriment, we first review the superior courts
determination that Ken was not Simons psychological parent at the
time he filed suit for custody and visitation. Because Kens
clear detriment argument rests on the assertion that he has at
all relevant times been Simons psychological parent, his argument
ends where it begins unless he can demonstrate he was Simons
psychological parent at the relevant time. Second, we review
Kens clear detriment argument in light of our decisions in Buness
and Todd.
1. The superior court did not err by concluding that
Ken was not Simons psychological parent for
purposes of this custody dispute.
We have explained that a psychological parent is:
one who, on a day-to-day basis, through
interaction, companionship, interplay, and
mutuality, fulfills the childs psychological
needs for an adult. This adult becomes an
essential focus of the childs life, for he is
not only the source of the fulfillment of the
childs physical needs, but also the source of
his emotional and psychological needs.31
The superior court ruled that Ken did not demonstrate he was
Simons psychological parent during the relevant time period for
this custody action. And the court ruled that the relevant time
period was from December 28, 2006 when Kattaryna adopted Simon
to April 12, 2007 when Ken filed suit for custody.32
Ken disputes the superior courts decision that these
three and a half months constitute the relevant time period for
assessing his status as Simons psychological parent. He argues
that the superior court should have made its determination based
on all the evidence from the moment Ken became Simons foster
parent in September 2005 until trial in July 2008. Ken further
argues that even if the superior court was correct to consider
only the interval between the entry of the adoption decree and
the filing of the complaint in this action, it was still clearly
erroneous to conclude that Ken had not established psychological
parent status by the time he filed his complaint for custody.
Kattaryna counters that Ken cannot be Simons psychological parent
because he is a former foster parent whose legal rights were
extinguished by his failure to join in Kattarynas adoption of
Simon.
The issue of what time period the court should look to
in determining psychological parent status is particularly
significant in this case. The superior court found there was
insufficient evidence that Ken had established psychological
parent status as of the date Ken filed suit for custody, but the
superior courts oral findings included the statement that it was
unequivocal that as of the time of trial, July 2008, [Ken] was a
psychological parent to [Simon].33 We consider separately the
time before Kattaryna adopted Simon and the time after Ken filed
his complaint for custody.
a. The superior court correctly began its
analysis at the moment Kattaryna became
Simons sole legal parent.
The superior court concluded that no rights accrued to
[Ken] during the period of his foster parenting . . . such that
the rights of a psychological parent would have developed,
observing that Ken voluntarily allowed [Kattaryna] to adopt
[Simon] in December of 2006. Ken argues that the superior court
erred as a matter of law by not considering the entire time Ken
served as Simons foster parent when it decided whether Ken met
his burden of showing psychological parent status.34 We disagree.
The purpose of an adoption decree is to vest all legal
parental rights with the adoptive parent or parents, to the
exclusion of all others.35 The same policy reasons that motivate
AS 25.23.130 militate against recognizing a former foster parents
claims for custody or visitation against the wishes of the
adoptive parent based upon psychological bonds established during
the period of foster care. Just as the relationship between
adoptive parents and adoptive children should be protected from
post-adoption disruptions by biological parents who have
surrendered children for adoption, it must also be protected
against post-adoption disruptions from foster parents or other
third parties, particularly when these individuals did not oppose
the adoption or seek to reserve any rights under the adoption
decree.
Allowing Ken to establish psychological parent status
based upon time he served as a foster parent is also inconsistent
with the basic premise of our foster care and adoption programs.
Discussing the related concept of de facto parent status, the
American Law Institute has cautioned, [r]elationships with foster
parents are . . . generally excluded . . . because inclusion of
foster parents would undermine the integrity of a state-run
system designed to provide temporary, rather than indefinite,
care for children.36
Ascertaining whether a foster parent has attained
psychological parent status also presents special difficulties.
As we stated in Carter v. Brodrick, the psychological parent is
one who love[s], value[s], appreciate[s], and view[s] as an
essential person the child for whom he or she is caring.37 A
foster parent serves a vital but inherently temporary role in a
childs life. The ultimate goal in foster care is for the child
to either be returned to the biological parents in appropriate
circumstances or adopted, either by the foster parents or by
another third party. The temporary nature of foster care along
with the compensation for services associated with it make it
more difficult to ascertain whether a foster parent has become a
psychological parent or is serving the childs needs in a
different capacity.
Given these considerations, we hold that the superior
court was correct not to consider the time prior to the entry of
the adoption decree for purposes of determining whether Ken was
Simons psychological parent.
Kattaryna is correct that the time Ken served as Simons
foster parent may not be considered for purposes of establishing
psychological parent status, but she is incorrect that Ken is
barred from subsequently establishing such status. The adoption
decree gave Ken a clean slate upon which to establish
psychological parent status. While it made Ken a stranger to
Simon in the eyes of the law as of the moment of the adoption, in
this case that moment was short-lived.38 Kattaryna and Simon
continued living together with Ken after the adoption and the
superior court was obliged to evaluate the nature and quality of
the relationship that Ken developed with Simon following the
entry of the decree.
At least initially, Kattaryna promoted and fostered a
relationship between Ken and Simon after the adoption. The
custody investigator reported that Kattaryna, Simon, and Ken
still lived together as a family unit after the adoption, a fact
the superior court found significant. The superior court also
pointed to a new will Kattaryna drafted in January 2007 as
evidence that after the adoption she envisioned Ken being in
[Simons] life. The will identified Ken (or Kens relatives if Ken
did not survive Kattaryna) as guardian and conservator of Simon,
and left Kattarynas interest in the parties house to Ken.
Given Kens continuing relationship with Simon,
encouraged or at least accepted by Kattaryna, the difficult
question before the superior court was whether or not Ken
established psychological parent status in the period subsequent
to the adoption.
b. The superior court correctly ended its
analysis at the point when Ken filed his
complaint for custody.
The superior court concluded that the end of the
relevant period for determining psychological parent status was
when Ken filed his complaint for custody. Ken argues that the
superior court erred as a matter of law by not considering any
facts after Ken filed his complaint. We agree with the superior
court.
There are important policy reasons why the parental
status of parties to custody and visitation cases should be fixed
at the time they file suit: a third party should not be able to
establish psychological parent status against the wishes of the
legal parent as a result of court-ordered interim visitation.
Interim visitation is meant to help maintain and promote already
existing psychological parent-child bonds; it should not be
converted into a tool for establishing such bonds. If courts
considered the interim period, litigants in Kattarynas position
would have an incentive to withhold or oppose pre-trial
visitation, a potentially harmful result to a child genuinely
bonded to a third party psychological parent. Conversely,
litigants in Kens position would have an incentive to delay
resolution of the case in the hope a psychological parent
connection could be established by exercising visitation during
the interim period. The latter result could also be harmful to
the child, in addition to being contrary to the wishes of the
legal parent. For these reasons, we hold that in third party
custody or visitation actions, the relevant point in time for
establishing psychological parent status is the time when a
complaint for custody or visitation is filed.39
c. It was not clearly erroneous for the superior
court to decide that Ken failed to establish
psychological parent status during the
relevant time period.
The superior court did not find [Ken] to be the
psychological parent of [Simon], between the time of the adoption
on December 28, 2006 and the date [Ken] filed the Petition for
Custody on April 12, 2007. The court based its conclusion on
three primary considerations. First, it concluded that the time
period between the adoption and Kens custody complaint about
three and a half months was simply too short to establish
psychological parent status. Second, it pointed to Simons very
young age at the time of separation between nineteen and twenty
months as a factor weighing against establishing psychological
parent status. Finally, the court emphasized the importance of
the fact that Ken voluntarily agreed to let Kattaryna adopt Simon
alone just three and a half months before filing his complaint
for joint custody. We review a finding of psychological parent
status for clear error.40
The superior court did not clearly err when it found
that three to four months is not long enough to establish
psychological parent status, particularly given Simons young age.41
As the custody investigator stated, until a child is old enough
to say shes my mom and hes my dad, it is guesswork to figure out
who [the child] views as his psychological parent(s).
Furthermore, even though there is disputed evidence in the record
suggesting it was Kens intention to eventually adopt Simon, the
superior court did not err when it considered Kens decision not
to adopt Simon when he may have had the chance to do so as
weighing against his claim. We do not find the superior courts
decision that Ken failed to establish psychological parent status
at the time he filed suit for custody to be clearly erroneous.
We do not accept Kens invitation to reconsider whether a
psychological parent seeking custody or visitation over the
objections of a legal parent should be held to a different
substantive standard or evidentiary burden than another third
party seeking similar rights.
2. Buness and Todd are distinguishable from this
case.
Ken argues that Buness v. Gillen42 and Todd v. Todd43
support his argument that it will be clearly detrimental to Simon
if his bond with Ken is broken. We do not find either decision
to be inconsistent with the superior courts ruling. The third
party relationships that were at issue in Buness and Todd are
both distinguishable from Kens relationship with Simon. Most
prominently, the third party relationships with the children in
Buness and Todd were significantly longer than the relationship
between Ken and Simon. In Buness, the third party seeking
custody had been the childs stepfather and primary care-giver and
father figure for ten years.44 In Todd, the childs grandparents
sought custody and they had been the childs primary caregivers
for about seven years.45 Kens entire relationship with Simon was
only twenty months in duration when he filed suit for custody,
and only three and a half of those months post-dated the adoption
decree. Another important distinction is that the children in
Buness and Todd were significantly older than Simon; the third
parties in Buness and Todd had raised the children in those cases
throughout much of their childhood. In contrast, Simon was still
a toddler when Ken filed suit for custody.
In light of these considerations, we do not find that
the superior court was clearly erroneous in concluding that Ken
failed to demonstrate by clear and convincing evidence that it
would be clearly detrimental to Simon if Ken was not awarded
custody.46
C. Ken Did Not Prove By Clear And Convincing Evidence
That It Would Be In Simons Best Interest To Order
Visitation Over Kattarynas Objection.
The superior court did not rule on Kens request for
third party visitation, which was argued by the parties below.
Because this case already has a protracted history, because the
parties need finality, and because Ken presented his case for
visitation to the superior court, we resolve Kens claim for
visitation on the merits rather than remand for further
proceedings.47 We held in Evans that to obtain visitation over
the objection of a legal parent, a third party must show by clear
and convincing evidence that visitation is in the childs best
interests.48 This heightened burden of proof reflects our long-
standing custodial preference for parents over non-parents.49
In Evans, we noted the statement from the plurality in
the United States Supreme Courts decision Troxel v. Granville
that special weight must be given to a fit parents determination
as to the desirability of visitation with third parties.50 We
concluded that a presumption of parental fitness to determine
what is in a childs best interests could be ensured by requiring
that a third party prove by clear and convincing evidence that
such visitation is in the best interests of the child.51 The
result of establishing this heightened standard, we concluded,
was to provide effective protection for a parents choice, except
where the choice is plainly contrary to a childs best interests.52
In this case, Kattaryna has repeatedly expressed her
preference that Ken no longer have a role in Simons life. She
has actively told others that they are forbidden to refer to Ken
as Simons father. The psychological evaluator noted in a follow
up report prepared shortly before trial that [i]t remains clear,
as it was at the time of my original evaluation, that Kattaryna
wants Ken out of [Simons] life.
This is a difficult case and it is a close question
whether it would be in Simons best interests to order visitation
with Ken over Kattarynas fervent objections. On one hand, there
is evidence in the record of a close and loving relationship
between Simon and Ken as of the time of trial. On the other,
both the custody investigator and the psychological evaluator
acknowledged Simon could be harmed by continued exposure to the
toxic relationship between Ken and Kattaryna.53 Ultimately, Kens
inability to establish psychological parent status once again
undercuts his chief argument that removing Ken from Simons life
would be detrimental to Simon. We also disagree with Ken
regarding the weight to be given to Kattarynas unwillingness to
foster his relationship with Simon; special consideration must be
given to a fit parents determination regarding the desirability
of visitation with third parties.54 Having considered the
evidence presented at trial, we find that Ken did not meet his
burden to prove by clear and convincing evidence that Kattarynas
preference that he no longer have a relationship with Simon is
plainly contrary to the childs best interests.
D. The Superior Court Did Not Err By Requiring Kattaryna
To Repay A Loan From Kens Parents Or By Not Crediting
Her Loan Payments To Both Parties.
On cross-appeal, Kattaryna argues the superior court
erred in finding that Kens parents loaned $22,000 to Kattaryna
and $22,000 to Ken. She argues the parties called and treated
the payments gifts. Ken disagrees and also argues the court
erred by not crediting Kattarynas loan payments to both parties.
There is a rebuttable presumption that transfers of
funds between close relatives are not actual debts.55 We review
the superior courts characterization of such transfers of funds
as loans or gifts for clear error.56
There is conflicting evidence as to whether the
transfer of funds from Kens parents were loans or simply gifts.
Kens parents issued gift letters stating [n]o repayment of this
gift is expected or implied either in the form of cash or by
future services of the recipient, and Kattaryna testified she
made payments out of a moral obligation only. Kens mother
testified the payments were interest-free and without a specific
payment term, but that the payments were loans, and that the gift
part of the transaction was making the loans interest-free and
not requiring a specific payment term or schedule. She also
testified they made similar loans to Kens siblings, and the
record contains documents showing payments made on those loans.
Kattaryna made sixteen payments to Kens parents, generally in
installments of $250, and wrote home loan on her checks. Ken
testified the payments from his parents were loans and that
Kattarynas installments were payments made on behalf of both of
them because he was paying the mortgage.
The presumption that transfers of funds between close
relatives are not actual debts is rebutted in this case by
weightier evidence that the money from Kens parents was intended
to be repaid. We conclude that the court did not clearly err in
finding the payments from Kens parents were legally enforceable
loans.57
We also conclude the superior court did not clearly err
by crediting Kattaryna for the loan payments she made, and by not
crediting Ken for the mortgage payments.58 [P]roperty accumulated
during cohabitation should be divided by determining the express
or implied intent of the parties.59 Although Ken testified that
Kattaryna made payments on the parents loans for both of them
because he was paying the mortgage, the record shows the loans
were made to Kattaryna and Ken individually. The record also
supports the superior courts factual finding that the parties
intended Ken to pay the mortgage, and that Kattaryna would pay
utilities and incidentals because Ken had a higher income. The
courts property division was in accord with the parties
intentions, as reflected in the record.
E. The Superior Court Did Not Err By Granting Kattaryna
Interim Attorneys Fees.
Ken argues on appeal that the superior court abused its
discretion when it ordered him to pay Kattaryna interim attorneys
fees. He argues the court made no findings to support this
decision and claims that the fact he has lived in the house
throughout the litigation does not support awarding Kattaryna
interim attorneys fees.
The court reduced its original award of interim fees
from $10,000 to $5,000, finding the award justified because Ken
had a greater income and occupied the home the parties largest
and only significant equity throughout the action.
[I]n actions between unmarried couples that resemble
divorce proceedings the rules governing the award of attorneys
fees in divorce cases will be applied.60 In such cases, an award
of costs and fees is based on the relative economic situations
and earning powers of the parties.61 The purpose of such awards
is to ensure the parties can litigate on a fairly equal plane.62
We review an interim attorneys fee award in divorce-like
proceedings for abuse of discretion and will not reverse the
award unless it is arbitrary, capricious, manifestly
unreasonable, or stems from an improper motive.63
Here, the court did not abuse its discretion in
awarding Kattaryna $5,000 in fees. Contrary to Kens assertion,
the court made findings and its findings were relevant to the
determination. It considered the parties respective incomes and
other sources of equity, including Kens continued possession of
the house, the parties sole significant asset. The record
supports these findings. The courts findings were not clearly
erroneous, it considered appropriate factors, and the award was
not arbitrary, capricious, or manifestly unjust.
F. The Superior Court Should Have Provided Notice To Ken
Before Issuing A Writ Of Assistance To Kattaryna.
Ken contends the superior courts communication with
opposing counsel following its oral ruling and its issuance of a
writ of assistance outside of his presence was error.
The purpose of the courts proceedings on August 22,
2008 was to issue the courts oral ruling on record. While no
notice was sent to counsel, the date for the decision on the
record appeared on the CourtView calendar, which both parties
could access. Kattarynas counsel saw the date on CourtView and
attended. Ken and his counsel did not have notice and they were
not present. There is no evidence that the court intended to
address the issue of a writ of assistance at these proceedings
this issue came up when Kattarynas counsel asked if the court was
going to issue an order for the return of Simon. But the court
ended up granting Kattarynas request for a writ of assistance
without providing an opportunity for Ken to be heard. Ken is
correct that the writ of assistance should not have been issued
under these circumstances. As Ken notes, however, the damage has
been done. Ken did not request additional relief.
IV. CONCLUSION
For the reasons stated above, with the exception of the
courts issuance of a writ of assistance, the decisions of the
superior court are AFFIRMED.
_______________________________
1 This opinion uses a pseudonym to protect the minors
privacy.
2 25 U.S.C. 1903(4) (2006).
3 Simons biological mothers parental rights were
terminated and his biological father voluntarily relinquished his
parental rights. The tribes with which Simon is affiliated
received notice of the adoption hearing and filed no objection;
the court found good cause to deviate from ICWAs placement
preferences.
4 CourtView is the trial courts electronic, online
docketing and calendaring system.
5 The superior court observed that the total loan amount
was actually $48,000, but found that only $44,000 was related to
the home. Because it did not find that the remaining $4,000 was
related to the home, it did not include this amount in its
calculations. Neither party appeals this decision.
6 In re Adoption of Missy M., 133 P.3d 645, 648 (Alaska
2006) (quoting Elton H. v. Naomi R., 119 P.3d 969, 973 (Alaska
2005)) (internal quotation marks omitted).
7 R.I. v. C.C., 9 P.3d 274, 277 (Alaska 2000) (internal
citations omitted); see also Skinner v. Hagberg, 183 P.3d 486,
489 (Alaska 2008) (reviewing visitation orders for abuse of
discretion) (citing Lone Wolf v. Lone Wolf, 741 P.2d 1187, 1190
(Alaska 1987)).
8 In re Missy M., 133 P.3d at 648 (quoting Fardig v.
Fardig, 56 P.3d 9, 11 (Alaska 2002)).
9 Kinnard v. Kinnard, 43 P.3d 150, 153 (Alaska 2002).
10 In re Missy M., 133 P.3d at 648.
11 J.W. v. R.J., 951 P.2d 1206, 1209 (Alaska 1998) (citing
R.R. v. State, 919 P.2d 754, 755 n.1 (Alaska 1996)), overruled on
other grounds by Evans v. McTaggart, 88 P.3d 1078, 1085 n.34
(Alaska 2004).
12 Elton H. v. Naomi R., 119 P.3d 969, 973 (Alaska 2005)
(quoting Moeller-Prokosch v. Prokosch, 27 P.3d 314, 316 (Alaska
2001)).
13 See Koller v. Reft, 71 P.3d 800, 808 (Alaska 2003).
14 See id. (quoting Zimin v. Zimin, 837 P.2d 118, 124
(Alaska 1992)) (internal quotation marks omitted).
15 781 P.2d 985, 986 (Alaska 1989), overruled on other
grounds by Evans, 88 P.3d at 1085 n.34 (Alaska 2004).
16 Id. at 988.
17 Evans, 88 P.3d at 1082. We recognize that the
statement in Evans questioning the relationship between the
significant connection test and psychological parent status
caused confusion. To clarify, a third party need not prove
psychological parent status in order to have standing to bring a
claim for custody or visitation. As we suggested in Evans,
establishing psychological parent status is more demanding than
the significant connection status that a third party must have in
order to seek custody. Id. Significant connection status is a
threshold question; it relates to whether a third party has
standing to assert a claim for custody or visitation. Buness,
781 P.2d at 988. Psychological parent status does not entitle a
third party to custody or visitation, but this status can help a
third party prove that it would be clearly detrimental to a child
to deny third party custody, or that it would be in the childs
best interests to grant visitation to a third party. See, e.g.,
id. at 989 n.8.
18 Brown v. Music Inc., 359 P.2d 295, 300-01 (Alaska
1961). The failure to raise the issue of capacity to sue below
results in a waiver of that defense. Moore v. State, Dept of
Natural Res., 992 P.2d 576, 577 n.5 (Alaska 1999); see also
Jackson v. Nangle, 677 P.2d 242, 250 n.10 (Alaska 1984); King v.
Petroleum Servs. Corp., 536 P.2d 116, 118 (Alaska 1975).
19 Questions of standing should be raised and decided
during the initial stages of litigation. Given the emotional
burden custody and visitation litigation places on children and
litigants, trial courts should resolve issues of standing as
early as possible in the pre-trial phase of litigation.
20 In relevant part, AS 25.23.130(a)(2) provides:
(a) A final decree of adoption . . . has the
following effect . . . (2) to create the
relationship of parent and child between
petitioner and the adopted person, as if the
adopted person were a legitimate blood
descendant of the petitioner, for all
purposes . . . .
21 88 P.3d 1078, 1079 (Alaska 2004).
22 Id. at 1081.
23 Id. at 1087.
24 Id. at 1082.
25 Id. at 1085.
26 Evans, 88 P.3d at 1085.
27 Id.
28 See J.W. v. R.J., 951 P.2d 1206, 1211 (Alaska 1998)
([T]he court may take the relationship [between a child and a
third party] into account, however, in deciding whether awarding
custody to the biological parent would be detrimental to the
child.), overruled on other grounds by Evans v. McTaggart, 88
P.3d 1078, 1085 n.34 (Alaska 2004).
29 781 P.2d 985, 989 (Alaska 1989).
30 989 P.2d 141, 143 (Alaska 1999).
31 Evans, 88 P.3d at 1082 (quoting Carter v. Brodrick, 644
P.2d 850, 853 n.2 (Alaska 1982)).
32 The superior court made conflicting statements about
whether it considered the time of suit or the time of separation
to be the relevant point for determining psychological parent
status. We conclude that although the superior court treated
these events somewhat interchangeably, it ultimately decided that
the date Ken filed his complaint for custody was the relevant
date for purposes of determining his psychological parent status.
33 The superior courts written findings of fact and
conclusions of law only state that (1) the court did not find Ken
to be the psychological parent of Simon between the time of
adoption and the date he petitioned for custody; and (2) Ken is
not the psychological parent of Simon.
34 Because Ken argues psychological parent status to meet
the clear detriment requirement in his claim for third party
custody, the evidentiary burden he must meet to establish this
status is clear and convincing evidence. Evans, 88 P.3d at 1085
(holding that a heightened standard of proof is appropriate in
initial custody contests between parents and non-parents, and
that the heightened standard should be a clear and convincing
evidence standard.).
35 See AS 25.23.130. There is a spousal exception for
instances where a stepparent who is married to the natural parent
adopts the natural parents child. Id.
36 ALI Principles of the Law of Family Dissolution 2.03
comment c(ii).
37 644 P.2d 850, 853 n.2 (Alaska 1982).
38 See, e.g., In re Adoption of S.K.L.H., 204 P.3d 320,
326 n.23 (Alaska 2009) (AS 25.23.130(a) clearly provides, however
harshly, that the final [adoption] decree has the effect of
making an adopted child a stranger to the former relatives.)
(internal citations omitted).
39 Ken points to our ruling in Evans to support his
argument that the superior court should have made its
determination on psychological status based on his entire history
with Simon up to the time of trial. In Evans, we vacated an
award of custody and visitation to the grandparents of two half-
brothers, ordering that if on remand the grandparents visitation
and custody could not be sustained on previously-admitted
evidence, the superior court was to hold an evidentiary hearing
to get updated facts. 88 P.3d 1078, 1091 (Alaska 2004). The
issue in Evans was not the nature of the grandparents
relationship to the children the superior court held they had
not established psychological parent status, Id. at 1082 the
issue was the ability of the childrens biological parents to meet
the childrens physical, emotional and intellectual needs. Id. at
1080. The question of parental fitness or home environment is
often an evolving assessment. If a parent has gone from being
fit to unfit or the home environment has deteriorated over the
course of litigation, a superior court may consider these changed
circumstances when determining custody or visitation.
40 Kinnard v. Kinnard, 43 P.3d 150, 153 (Alaska 2002).
41 The American Law Institute standard for establishing de
facto parent status requires that a person live with a child for
a significant period of time not less than two years. ALI
Principles of Family Dissolution 2.03, comment c(iv). We do not
establish any minimum length of time for establishing
psychological parent status, but we do agree with the ALI that
[t]he length of time that constitutes a significant period will
depend on many circumstances, including the age of the child, the
frequency of contact, and the intensity of the relationship. Id.
42 781 P.2d 985, 989 (Alaska 1989).
43 989 P.2d 141, 145 (Alaska 1999).
44 781 P.2d at 989.
45 989 P.2d at 145.
46 Kens argument that remand is necessary on the issue of
clear detriment because it is not possible to discern the basis
of the superior courts decision also fails. Because we affirm
the superior courts finding that Ken did not establish
psychological parent status during the relevant period, and
psychological parent status is Kens sole argument for
establishing clear detriment, remand is not appropriate.
47 See, e.g., In re Estate of Johnson, 119 P.3d 425, 436
n.43 (Alaska 2005) (Due to the lengthy delays in this case, we
are reluctant to remand the case for further proceedings.); State
v. Kenaitze Indian Tribe, 83 P.3d 1060, 1071 (Alaska 2004)
([G]iven the long delays in this litigation . . . we are
reluctant to remand to the superior court to carry out the same
review that we have already conducted. We therefore think it is
better in this case for us to consider the merits of whether the
regulation is invalid, rather than remand to the superior court,
with the potential for further appeals.).
48 Evans v. McTaggart, 88 P.3d 1078, 1089 (Alaska 2004).
49 See, e.g., Turner v. Pannick, 540 P.2d 1051, 1055
(Alaska 1975) (stating that parental custody [is] preferable and
only to be refused where clearly detrimental to the child); see
also Kinnard v. Kinnard, 43 P.3d 150, 154 (Alaska 2002) (Even in
custody disputes between parents and stepparents, the best
interests standard is rejected in favor of the Turner parental
preference.); J.W. v. R.J., 951 P.2d 1206 (Alaska 1998) (applying
the parental preference principle established in Turner to a
custody dispute between a legal parent and a stepparent who had
established psychological parent status).
50 Evans, 88 P.3d at 1089 (citing Troxel v. Granville, 530
U.S. 57, 70 (2000)).
51 Id. We also found that visitation could be ordered
over the objection of a legal parent if the court found by clear
and convincing evidence that the parent was unfit to make
visitation decisions. Id. at 1090. Ken has not alleged that
Kattaryna is unfit to make visitation decisions, so we need not
consider this here.
52 Id. at 1089.
53 As the custody investigator concluded, [i]f [Kattaryna]
is unable to accept [Ken] as [Simons] father, then any kind of
custody/visitation schedule has the great potential to create a
horrific existence for [Simon] as hes the object of a lifetime of
conflict between [Ken] and [Kattaryna]. Even Ken admitted to the
psychological evaluator that he has seriously considered bowing
out of [Simons] life if it is determined that Kattaryna would be
unable to cooperate with him in coparenting [Simon], although he
loves [Simon] and does not want to do this.
54 We consider the willingness and ability of each parent
to facilitate and encourage a close and continuing relationship
between the other parent and the child in a custody dispute
between two parents. AS 25.24.150(c)(6) But this is not a
dispute between two parents. Consistent with our opinion in
Evans, the parental preference may only be overcome if it is
determined, by clear and convincing evidence, that it would be in
the best interests of the child to award third party visitation.
55 Ware v. Ware, 161 P.3d 1188, 1192 (Alaska 2007)
(quoting Dixon v. Bradsher, 779 S.W.2d 727, 732 (Mo. App. 1989));
Fortson v. Fortson, 131 P.3d 451, 462 n.34 (Alaska 2006) (citing
Charles C. Marvel, Annotation, Unexplained Gratuitous Transfer of
Property From One Relative to Another as Raising Presumption of
Gift, 94 A.L.R.3d 608 (1979); 59 Am.Jur.2d Parent and Child 92
(2002)).
56 See Fortson, 131 P.3d at 461 (upholding finding that
loans from former wifes parents were not legally enforceable).
57 See id. at 462 (The trial court is the factfinder, and
given the evidence in the record supporting its decision [that
payments from the former wifes parents were gifts], we cannot say
that its finding that the loans were not marital debts was
clearly erroneous.).
58 The superior court found the parties intended to own
the house equally, although it recognized the payments had been
unequal. It credited Ken for home improvements. It ordered the
parties to refinance and to split those costs equally. It
concluded that ultimately, Ken would be entitled to $78,883.75 in
equity and Kattaryna to $50,132 (taking into account the
improvement credit to Ken and the debt to his parents), less half
the refinancing costs.
59 Bishop v. Clark, 54 P.3d 804, 811 (Alaska 2002)
(quoting Wood v. Collins, 812 P.2d 951, 956 (Alaska 1991)).
60 Id. at 813 (citing Bergstrom v. Lindback, 779 P.2d
1235, 1238 (Alaska 1989)). AS 25.24.140(a) permits a court to
award interim attorneys fees to a spouse.
61 Bergstrom, 779 P.2d at 1238 (citing L.L.M. v. P.M., 754
P.2d 262, 263-64 (Alaska 1988)).
62 Sanders v. Barth, 12 P.3d 766, 769 (Alaska 2000)
(citing Lone Wolf v. Lone Wolf, 741 P.2d 1187, 1192 (Alaska
1987)).
63 Koller v. Reft, 71 P.3d 800, 808 (Alaska 2003) (citing
Zimin v. Zimin, 837 P.2d 118, 124 (Alaska 1992)).
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