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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Misyura v. Misyura (11/19/2010) sp-6525
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
SERGEY MISYURA, )
) Supreme Court No. S-13579
Appellant, )
) Superior Court No. 4FA-08-01460 CI
v. )
) O P I N I O N
LYUDMILA MISYURA, )
) No. 6525 - November 19, 2010
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Fourth
Judicial District, Fairbanks, Randy M. Olsen, Judge.
Appearances: Thomas R. Wickwire, Law Office of Thomas
Wickwire, Fairbanks, for Appellant. Dorothy E. Heim,
Alaska Legal Services Corporation, Fairbanks, for Appellee.
Before: Fabe, Winfree, Christen, and Stowers, Justices.
[Carpeneti, Chief Justice, not participating.]
CHRISTEN, Justice.
I. INTRODUCTION
Both parties to this action sought custody of their three children during their
divorce proceeding. The trial court found the father had a history of domestic violence
and awarded the mother sole physical and legal custody pursuant to AS 25.24.150(g).
The father appeals, arguing: (1) he did not have a history of domestic violence sufficient
to trigger the presumption against awarding him custody under AS 25.24.150(g); (2)
there was no basis for denying him overnight visits; and (3) the trial court erred by
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delegating to the mother the discretion to place conditions on the father's visitation. We
affirm the custody decision; but because it was error for the trial court to delegate the
authority to require the non-custodial parent to attend an intervention program for
batterers, we reverse and remand the visitation order. We do not reach the question of
overnight visitation.
II. FACTS AND PROCEEDINGS
Sergey and Lyudmila were married in Belarus in 1994. They have three
children: Karina, David, and Jessica, now approximately ages fifteen, nine, and four.
Both parties were residents of Alaska residing in Fairbanks at the time of trial.
The parties separated in November 2007 when Sergey moved into a house
he had been building for the family. Initially, all three children lived with Lyudmila, but
in February 2008 David went to live with Sergey.
Sergey filed a motion for temporary custody and appointment of a custody
investigator on May 27, 2008. Lyudmila never received notice of the motion and did not
attend the July 17, 2008 hearing. The court granted Sergey's unopposed motion and
entered an order for temporary custody awarding him sole custody of the three children.
The children were removed from Lyudmila's custody and placed in Sergey's custody on
or about July 25, 2008. The children lived with Sergey until September 2008 when the
court issued an interim child custody order awarding temporary custody of the three
children to Lyudmila "with liberal visitation with Sergey."
Meanwhile, Lyudmila sought a domestic violence protective order. A
magistrate held hearings on August 25, 2008 and October 2, 2008. Lyudmila testified
about an incident where Sergey passed her car in a narrow no-passing zone and nearly
forced her off of the road. The magistrate also heard testimony about an incident on the
night of Lyudmila's birthday when Sergey saw her enter her apartment with another man
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and approached her window. On the basis of this testimony, the magistrate found by a
preponderance of the evidence that Sergey had committed criminal trespass and reckless
endangerment. The magistrate issued a long term protective order after the contested
hearing. Sergey did not appeal that order.
The divorce and custody trial was conducted in May 2009. During the trial,
Lyudmila testified about the domestic violence she had experienced throughout the
marriage. She testified about an incident where Sergey choked her nearly to
unconsciousness, another when he pushed her and she fell on the floor when she was
seven months pregnant, and numerous instances where he forced her to have sexual
intercourse with him. Based on this evidence, the trial court found that "there is a history
of domestic violence by Sergey on Lyudmila" and awarded sole legal and physical
custody to Lyudmila under the presumption in AS 25.24.150(g).1
But the court believed that Sergey had "in many ways . . . been a caring and
good father" and should, under AS 25.24.150(j) be allowed unsupervised visits "in the
best interests of the children."2 The court said that "[u]nsupervised visits with Sergey
1 AS 25.24.150(g) provides: "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."
2 AS 25.24.150(j) provides:
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 parent's 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
(continued...)
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may be held, in Lyudmila's discretion" as long as she felt the children were not adversely
affected by the visits. If Lyudmila felt the children were being harmed, the court ordered
that she could discontinue the unsupervised visits and instead arrange supervised visits.
Finally, the court ordered that Lyudmila could require Sergey to attend a program called
Alternatives to Violence as a prerequisite to unsupervised visits, at her discretion.
Sergey appeals. He argues: (1) he does not have a history of domestic
violence sufficient to trigger AS 25.24.150(g)'s presumption against awarding him
custody; (2) there was no basis for denying him overnight visits; and (3) the trial court
erred by delegating to Lyudmila the discretion to require him to attend Alternatives to
Violence classes or to revoke his unsupervised visits.
III. STANDARD OF REVIEW
The superior court has "broad discretion to determine custody awards in a
divorce proceeding so long as the determination is in the child's best interests."3 We
"will not reverse a superior court's custody determination unless it abused its discretion
or its controlling factual findings are clearly erroneous."4
The superior court abuses its discretion when it "considers improper factors
in making its custody determination, fails to consider statutorily mandated factors, or
2(...continued)
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 child's best interests.
3 Thomas v. Thomas, 171 P.3d 98, 102 (Alaska 2007) (citing Elton H. v.
Naomi R., 119 P.3d 969, 973 (Alaska 2005)).
4 Id. (citing Elton H., 119 P.3d at 973-74).
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assigns disproportionate weight to particular factors while ignoring others."5 Factual
findings are clearly erroneous if a review of the entire record leaves us "with a definite
and firm conviction . . . that a mistake has been made."6
"We give 'particular deference' to the trial court's 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."7
IV. DISCUSSION
A. The Trial Court Properly Awarded Lyudmila Sole Legal And Physical
Custody Under AS 25.24.150(g).
1. The trial court did not err by declining to apply collateral
estoppel to preclude Sergey from re-litigating the
magistrate's domestic violence findings.
On October 3, 2008, after having found by a preponderance of the evidence
that Sergey had committed two crimes involving domestic violence against Lyudmila,
reckless endangerment and criminal trespass, a magistrate entered a long term protective
order in Lyudmila's favor. Sergey did not appeal the order. At the divorce trial,
Lyudmila asserted that AS 25.24.150(g) creates a presumption against awarding physical
or legal custody to a perpetrator of domestic violence based on the magistrate's findings.
Over Lyudmila's objection that the domestic violence issue was "res judicata," Sergey
5 Id. (quoting Elton H., 119 P.3d at 974) (internal quotation marks omitted).
6 Jenkins v. Handel, 10 P.3d 586, 589 (Alaska 2000) (quoting Dingeman v.
Dingeman, 865 P.2d 94, 96 (Alaska 1993)) (internal quotation marks omitted).
7 Ebertz v. Ebertz, 113 P.3d 643, 646 (Alaska 2005) (quotingIn re Adoption
of A.F.M., 15 P.3d 258, 262 (Alaska 2001)).
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introduced evidence and testimony about the incidents the magistrate already found to
have occurred.
The superior court heard Sergey's evidence about the incident of criminal
trespass and observed that "Lyudmila verified that on the occasion relied on by the
[magistrate], when Sergey had staked out the apartment, that Sergey had not, in fact,
entered her apartment." The superior court decided that it did "not need to decide
whether [an] un-appealed, flawed, domestic violence hearing['s] findings [were] res
judicata, because it concludes from the testimony presented at trial that there is a history
of domestic violence by Sergey on Lyudmila."
Sergey argues on appeal that the superior court erred by finding two acts
of domestic violence occurred during the marriage. Lyudmila counters that the superior
court should not have reconsidered whether the episodes of domestic violence occurred
because the magistrate decided that question after a contested hearing. Lyudmila
contends that the doctrine of collateral estoppel should have prevented the superior court
from hearing evidence that Sergey did not commit two incidents of domestic violence.
We have adopted the rule that the "decision to apply collateral estoppel is
within the discretion of the trial court, although this discretion must be tempered by
principles of fairness in light of the circumstances in each particular case."8 Our case law
recognizes that there are circumstance when it would be unfair - and an abuse of the
superior court's discretion - to require a party to re-litigate an issue previously decided.9
8 Borg-Warner Corp. v. Avco Corp. (Lycoming Div.), 850 P.2d 628, 635
(Alaska 1993) (citing Chemetron Corp. v. Bus. Funds, Inc., 682 F.2d 1149, 1191 (5th
Cir. 1982), vacated on other grounds, 460 U.S. 1007 (1983), cert. denied sub nom. Binliff
v. Chemetron Corp., 460 U.S. 1013 (1983)).
9 See, e.g., Matanuska Elec. Ass'n v. Chugach Elec. Ass'n, Inc., 152 P.3d
(continued...)
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But in this case, we do not reach the question of whether it was unfair to require
Lyudmila to relitigate the two instances of domestic violence; even if we concluded that
the superior court abused its discretion, any error was harmless. The superior court made
factual findings that allowed it to conclude, as the magistrate had concluded, that at least
two instances of domestic violence occurred. Because we separately decide that the
superior court's factual findings are not clearly erroneous, they were sufficient to trigger
the presumption in AS 25.24.150(g).
2. The trial court's finding that Sergey had a history of
domestic violence was not clearly erroneous.
Alaska Statute 25.24.150(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." A parent has a "history of
perpetrating domestic violence" under AS 25.24.150(h) if the court finds "that, during
one incident of domestic violence, the parent caused serious physical injury or . . . the
parent has engaged in more than one incident of domestic violence." If
AS 25.24.150(g)'s presumption applies, it can be overcome if the perpetrating parent
shows by a preponderance of the evidence that he or she has "successfully completed an
intervention program for batterers [and] . . . does not engage in substance abuse."10 It is
9(...continued)
460, 468 (Alaska 2007) ("Because the issues were vigorously contested before the
Commission, it is fair to apply the doctrine of collateral estoppel to the question whether
Chugach complied with prudent utility practice."); State of Alaska, Child Support
Enforcement Div. v. Bromley, 987 P.2d 183, 192 (Alaska 1999) (collateral estoppel
"aim[s] to prevent parties from again and again attempting to reopen a matter that has
been resolved by a court of competent jurisdiction" (internal quotation marks omitted)
(citing Engebreth v. Moore, 567 P.2d 305, 307 (Alaska 1977))).
10 AS 25.24.150(h).
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undisputed that Sergey did not attend an intervention program for batterers. The court
found no evidence that he engages in substance abuse.
Sergey argues the trial court erroneously applied the presumption in
AS 25.24.150(g) against him because there was no evidence that he had a history of
domestic violence within the meaning of AS 25.24.150(h). Specifically, he alleges
Lyudmila fabricated the domestic violence allegations. He relies on the fact that she "did
not present a single witness, a medical record which might have shown her seeking
treatment for injuries, a picture of a bruise or other injury, no claim to have sought
counseling for the emotional aftermath, no claim to have lost work time because of
injuries or embarrassment from bruises."
We apply the "clearly erroneous" standard of review to Sergey's appeal of
the trial court's factual findings.11 The trial court found that Sergey had terrified
Lyudmila by nearly forcing her car off the road and believed her testimony that she had
endured "years of domination, intimidation, demands, and physical, psychological, and
sexual abuse" by Sergey. Given Lyudmila's testimony on the domestic violence she
experienced, the trial court's determination that Sergey was not a credible witness - and
its finding that Lyudmila was - we are not left with a definite and firm conviction that
the trial court erred when it found that Sergey committed multiple acts of domestic
violence against Lyudmila.12
The trial court's finding that Sergey had a history of domestic violence
within the meaning of AS 25.24.150(h) was not clearly erroneous, and Sergey did not
11 Thomas v. Thomas, 171 P.3d 98, 102 (Alaska 2007) (citing Elton H. v.
Naomi R., 119 P.3d 969, 973-74 (Alaska 2005)).
12 Ebertz v. Ebertz, 113 P.3d 643, 646 (Alaska 2005) (explaining that we give
"particular deference" to trial judge's findings on witness credibility (quoting In re
Adoption of A.F.M, 15 P.3d 258, 262 (Alaska 2001))).
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rebut the presumption against an award of custody by completing an intervention
program for batterers. Having established these facts, the superior court did not err by
invoking AS 25.24.150(g)'s presumption against Sergey and awarding sole legal and
physical custody to Lyudmila.13
B. It Was Error For The Trial Court To Delegate To Lyudmila The
Discretion To Impose An Intervention Program For Batterers On
Sergey's Right To Visit The Children.
Although the trial court granted sole legal and physical custody of the
children to Lyudmila, it ordered that Sergey be allowed unsupervised visits "in the best
interests of the children" under AS 25.24.150(j). It explained that Lyudmila could stop
Sergey's unsupervised visits if she felt they were harming the children or affecting her
relationship with them. The court also allowed Lyudmila the discretion to decide
whether to require supervised visits with a supervisor of her choice, or to require Sergey
to attend an intervention program for batterers as a prerequisite for unsupervised visits.
Sergey argues that because the trial court did not require his visits with the
children to be supervised or require him to attend batterers' intervention classes, it was
error for the court to delegate to Lyudmila the power to place these conditions on his
visitation. He contends that the power to make these decisions - supervised or
unsupervised visitation, domestic violence classes or no classes - lies with the court and
cannot be delegated to Lyudmila. We agree that it was error to delegate these decisions
to Lyudmila.
13 See Michele M. v. Richard R., 177 P.3d 830, 837 (Alaska 2008) ("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." (citing Puddicombe v. Dreka, 167 P.3d 73, 77 (Alaska 2007))).
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Alaska Statute 25.24.150, entitled "Judgments for custody" provides that
if a court has jurisdiction and is the appropriate forum, it may "make, modify, or vacate
an order for the custody of or visitation with [a] minor child that may seem necessary or
proper." Our rules and procedure recognize that the superior court may be aided in its
custody and visitation decisions by the receipt of lay and expert testimony, by reports and
testimony from child custody investigators, psychologists and social workers.14 But
neither the civil rules nor our statutory scheme contemplate that the superior court may
delegate the authority to require an intervention program for batterers as a prerequisite
to a non-custodial parent's ability to exercise visitation.15 The situation in this case is not
akin to one parent being given permission by the court to deny visitation if the other
parent fails to abide by court-imposed conditions, such as an order allowing visitation
only if the non-custodial parent is sober, transports the child in an insured vehicle,
transports the child in an appropriate car seat, or other similar conditions. In this case,
the court delegated to Lyudmila the authority to decide whether to impose the condition
that Sergey complete an intervention program for batterers. That decision is one that
must be made by the court.
The conclusion that it was error to delegate to Lyudmila the authority to
require an intervention program for batterers as a condition of Sergey's visitation is
supported by practical considerations. Allowing such delegation in relationships marred
14 See AS 25.24.150; Alaska R. Civ. P. 90.6.
15 For example, AS 25.20.061 provides that if visitation is awarded to a parent
who has committed a crime involving domestic violence against the other parent within
five years of the award of visitation, "the court may set conditions for the visitation."
(Emphasis added.) Under this statute, the court may require that the perpetrator "attend
and complete . . . a program for the rehabilitation of perpetrators of domestic violence .
. . or other counseling" or set "any other condition necessary for the safety of the child,
the other parent, or other household member."
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by domestic violence is likely to raise both the level of tension between the parents and
the probability of future conflict. It is for the judge, not the parties, to decide whether an
intervention program for batterers should be imposed upon a non-custodial parent's
visitation.16
V. CONCLUSION
We AFFIRM the trial court's custody order, but REVERSE and REMAND
its visitation order.
16 Because we conclude that the visitation order must be reversed and
remanded, we do not reach Sergey's separate argument that he was wrongfully denied
overnight visitation.
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