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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Heather W. v. Rudy R. (4/20/2012) sp-6666
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, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
HEATHER W., )
) Supreme Court No. S-14332
Appellant, )
) Superior Court No. 3AN-02-05469 CI
v. )
) O P I N I O N
RUDY R., )
) No. 6666 - April 20, 2012
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Sen K. Tan, Judge.
Appearances: Kara A. Nyquist, Anchorage, for Appellant.
Maryann E. Foley, Law Office of Maryann E. Foley,
Anchorage, for Appellee.
Before: Carpeneti, Chief Justice, Fabe, Winfree, and
Stowers, Justices.
FABE, Justice.
I. INTRODUCTION
Rudy R. moved to modify the agreement through which he and Heather W.
share 50-50 custody of their daughter. He argued that recent legal troubles and
instability in Heather's life amount to changed circumstances that required modifying the
custody agreement in the child's best interests. The superior court agreed. Heather now
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appeals, arguing that the evidence does not show that any of her changed circumstances
affected her child. The superior court also found that it was in the child's best interests
for Rudy to have primary physical custody. Heather argues this was an abuse of
discretion because the trial court considered impermissible character evidence, gave
disproportionate weight to some factors while ignoring others, and refused to consider
evidence of past domestic violence between the parties.
We conclude that the superior court did not abuse its discretion by finding
changed circumstances and did not assign disproportionate weight to certain statutory
best interest factors. But because the issue of domestic violence has never been
adjudicated, we remand for an evidentiary hearing to determine whether Rudy has a
history of domestic violence, and, if so, whether he has rebutted the statutory
presumption against an award of custody.
II. FACTS AND PROCEEDINGS
A. Background Facts
Heather W. and Rudy R. have one daughter, born in May 2000. In
September 2002 Heather and Rudy stipulated to a custody agreement whereby Heather
had primary physical custody of their daughter. Shortly thereafter, when the child was
two or three, the parties began an informal arrangement in which they shared physical
custody week on-week off. In 2006 the parties formally stipulated to modifying their
custody agreement to reflect the informal, alternate-week schedule they had been
following.
B. Motion To Modify Custody
In July 2010 Rudy filed a motion to modify the parties' custody
arrangement. Rudy argued that there had been "a material change of circumstances" that
justified modifying the custody agreement and that it was now in his daughter's best
interests that Rudy have primary physical custody. Rudy argued that several factors in
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Heather's life constituted a material change of circumstances that warranted modifying
the custody agreement, including: Heather's criminal charges for driving under the
influence and driving with a suspended license in November 2009 and for driving with
a suspended license in April 2010; the revocation of Heather's license; the bad behavior
of people close to Heather; and the instability of Heather's living situation.
Heather opposed the requested modification. She argued that there had not
been a material change in her circumstances and that even if Rudy's allegations were
true, he had failed to show how those allegations affected the child.
The superior court held a custody modification hearing in February 2011.
At the evidentiary hearing, the testimony concentrated largely on Heather's alleged
shortcomings as a parent. Heather was questioned about the circumstances surrounding
her DUI charge.1 Throughout the hearing, Heather and others were questioned about her
drinking, and Rudy suggested in closing that Heather had a drinking problem.
At the hearing, Rudy also emphasized two instances of concern between
Heather and men with whom she was romantically involved. In one instance,
immediately preceding her DUI charge, Heather and then-boyfriend Adam returned to
Heather's house after several drinks when Adam began "destroying [Heather's] house."
Heather testified that she was "absolutely terrified," and felt compelled to drive to a
nearby gas station to call the police. In another incident in October 2008, police were
called to the home Heather shared with then-boyfriend Charles. Charles was intoxicated
and had a gun. Heather, who was also intoxicated, refused a police officer's commands
to move away from Charles, and was eventually handcuffed, though not arrested.
1 Heather pleaded guilty to reckless driving.
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Both Heather and the citing police officer testified about the charge for
driving with a license suspended/revoked.2 Heather claimed that she needed to drive her
daughter to the emergency room because of a high fever, but the superior court found her
story less than credible.
Heather also testified about her various residences during the preceding five
years. In her affidavit she stated that she had lived in four residences, but Rudy
presented evidence that Heather may have lived at another address and been untruthful
about the dates of her various residences.
Throughout the hearing, Heather argued that her daughter was not affected
by Heather's alleged conduct, pointing out that her daughter was not present during the
DUI or the incidents involving Adam and Charles. Heather maintained that her lack of
a driver's license had not affected her daughter's attendance in school or extracurricular
activities. Heather argued that she had lived in her current address for over a year and
that the child had a stable home life and good home.
Finally, Heather's credibility was at issue during the hearing. Rudy called
two witnesses to support his contention that Heather had provided the court with two
forged letters and suggested that someone had subsequently removed one of the letters
from the court file. The superior court found that some of Heather's explanations for her
behavior were less than convincing.
Following the three-day hearing, the superior court issued an order,
supported by findings of fact and conclusions of law, awarding primary physical custody
to Rudy. Heather filed a motion for reconsideration, which was denied, and she now
appeals.
2 This case was ultimately dismissed.
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III. STANDARD OF REVIEW
"Whether the superior court applied the correct legal standard is a question
of law that we review de novo, 'adopting the rule of law that is most persuasive in light
of precedent, reason, and policy.' Trial courts have broad discretion in determining
whether a proposed child-custody modification is in the child's best interests."3 We will
reverse a trial court only when that court has "abused its discretion or when its
controlling findings of fact were clearly erroneous."4 "An abuse of discretion . . .
occurr[s] if the superior court considers improper factors in making its custody
determination, fails to consider statutorily mandated factors, or assigns disproportionate
weight to particular factors while ignoring others."5 "In the context of a custody
modification decree, this analysis must be applied to assess whether the superior court
was justified in changing the previous custody determination."6 "Factual findings are
clearly erroneous if, on the basis of the entire record, we are 'left with a definite and firm
conviction . . . that a mistake has been made, even though there may be evidence to
support the finding.' "7
IV. DISCUSSION
Alaska Statute 25.20.110(a) provides that "[a]n award of custody of a child
or visitation with the child may be modified if the court determines that a change in
3 Rego v. Rego , 259 P.3d 447, 452 (Alaska 2011) (quoting McQuade v.
McQuade , 901 P.2d 421, 423 n.3 (Alaska 1995)).
4 McLane v. Paul , 189 P.3d 1039, 1042 (Alaska 2008).
5 Borchgrevink v. Borchgrevink , 941 P.2d 132, 134 (Alaska 1997).
6 Gratrix v. Gratrix, 652 P.2d 76, 80 (Alaska 1982).
7 Barrett v. Alguire , 35 P.3d 1, 5 (Alaska 2001) (quoting Jenkins v. Handel ,
10 P.3d 586, 589 (Alaska 2000)).
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circumstances requires the modification of the award and the modification is in the best
interests of the child." Heather makes two sets of arguments, the first of which claim that
the trial court erred in finding a material change in circumstances, and the second of
which claim that the trial court abused its discretion in applying the statutory best
interests of the child factors. We address these arguments in turn.
A. The Superior Court Did Not Abuse Its Discretion In Finding A
Material Change Of Circumstances.
As a threshold matter, a party seeking a modification of custody must make
a prima facie showing that a substantial change in circumstances has occurred.8 "The
required change in circumstance must be significant or substantial, and must be
demonstrated relative to the facts and circumstances that existed at the time of the prior
custody order that the party seeks to modify."9 Further, to be material, a change in
circumstances must "affect[] the children's welfare."10 We require a movant to clear this
threshold in order "to maintain continuity of care and to avoid disturbing and upsetting
the child with repeated custody changes."11 We have expressed concern that "[c]hildren
. . . not be shuttled back and forth between . . . parents unless there are important
circumstances justifying such change as in their best interests and welfare."12
The superior court found a substantial change in circumstances, concluding:
The things that constitute a change of circumstances are
[Heather's] DUI case which was pled out, the restrictions on
8 See id. at 6.
9 Jenkins , 10 P.3d at 589 (internal citations omitted).
10 Harrington v. Jordan , 984 P.2d 1, 3 (Alaska 1999).
11 McLane v. Paul , 189 P.3d 1039, 1043 (Alaska 2008).
12 Nichols v. Nichols , 516 P.2d 732, 735 (Alaska 1973).
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her driver's license, there is the stability issue, including at
least two incidents of potential domestic violence in
[Heather's] relationships, and the deterioration in the parents'
relationship.[13]
Heather argues that the superior court erred in finding a material change in
circumstances. Her argument presents a mixed question of fact and law: She argues that
a change in circumstances can only be found material if the change affects the child and
that the superior court erred because Rudy did not demonstrate a nexus between his
allegations against Heather and any effect on the child. Rudy responds that "[t]here is
no . . . Alaska case law that prohibits a trial court from finding that a series of events can
constitute a substantial change of circumstance."
Rudy is correct. When reviewing whether a trial court was justified in
finding a change in circumstances, we do not parse each alleged factual assertion of
change, but instead look to see whether the circumstances in the aggregate establish a
change of circumstances.14 The superior court certainly did not abuse its discretion in
taking into account all of the circumstances raised in this case in concluding that there
had been a substantial change of circumstances. Heather's DUI arrest, subsequent arrest
for driving with a suspended license, and conduct with her boyfriends - one of which
involved domestic violence and another of which involved a gun - demonstrate a
pattern of conduct that presents a substantial change of circumstances.
Although Heather argues that none of these events were shown to affect her
daughter because her daughter was not present to witness them, the superior court
13 In the court's oral findings of fact from which the written findings are
adapted, the court calls the DUI charge the "[m]ost obvious" change of circumstances.
14 See Nichols v. Mandelin , 790 P.2d 1367, 1372 (Alaska 1990) (concluding
that "in the aggregate, [several indicia of a mother's overall maturation] constitute a
substantial change in circumstances").
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characterized this argument as "way too narrow." The superior court was well within
its broad discretion to find that such bad behavior was a substantial change of
circumstances affecting the child.15
B. The Superior Court Did Not Err In Its Analysis And Application Of
The Best Interest Factors.
Once the trial court has found a substantial change in circumstances
justifying custody modification, it must then determine whether modification of the
arrangement is in the best interests of the child.16 In making a determination as to best
interests, a court is required to consider the statutory factors enumerated in
AS 25.24.150(c)17 and, if there is a history of domestic violence by a parent, to apply the
15 As we have noted before, "[a] child need not see domestic violence in order
to be exposed to it." Iverson v. Griffith , Mem. Op. & J. No. 1260, 2006 WL 2578692,
*4 n.11 (Alaska, Sept. 6, 2006) (quoting Rachel L. Melissa, Note, Oregon's Response
to the Impact of Domestic Violence on Children , 82 OR . L. REV . 1125, 1128-29 (2003)).
Here, Heather did not take action to remove herself and her child from the potentially
harmful environments.
16 AS 25.20.110(a).
17 AS 25.24.150(c) provides:
In determining the best interests of the child the court shall
consider
(1) the physical, emotional, mental, religious, and social
needs of the child;
(2) the capability and desire of each parent to meet these
needs;
(3) the child's preference if the child is of sufficient age
and capacity to form a preference;
(4) the love and affection existing between the child and
each parent;
(continued...)
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presumption under AS 25.24.150(g).18
Heather argues that the trial court abused its discretion in three separate
ways in applying the statutory factors. First, Heather argues that the court impermissibly
relied on evidence of her lifestyle that did not affect her daughter. Second, she argues
that the trial court assigned disproportionate weight to certain factors while ignoring
17(...continued)
(5) the length of time the child has lived in a stable,
satisfactory environment and the desirability of maintaining
continuity;
(6) the willingness and ability of each parent to facilitate
and encourage a close and continuing relationship between
the other parent and the child, except that the court may not
consider this willingness and ability if one parent shows that
the other parent has sexually assaulted or engaged in
domestic violence against the parent or a child, and that a
continuing relationship with the other parent will endanger
the health or safety of either the parent or the child;
(7) any evidence of domestic violence, child abuse, or
child neglect in the proposed custodial household or a history
of violence between the parents;
(8) evidence that substance abuse by either parent or other
members of the household directly affects the emotional or
physical well-being of the child;
(9) other factors that the court considers pertinent.
18 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.
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others. Finally, she argues that the court failed to take into consideration Rudy's history
of domestic violence.
1. The superior court did not impermissibly consider evidence of
Heather's character unrelated to her daughter's welfare.
As Heather points out, "[a] parent's lifestyle, habits or character is only
relevant as it may be shown to negatively affect the child or the [parent's] parenting
ability."19 Heather argues that the superior court impermissibly relied on evidence of her
"lifestyle, habits, or character" by focusing on her DUI charge, license restrictions,
frequent moving, and relationship troubles, particularly without any direct evidence that
these adversely impacted her daughter.
Rudy responds that Heather's behavior is covered under numerous statutory
factors. The DUI charge, he argues, and the fact that Heather was intoxicated when the
police were called on the incidents involving Adam and Charles, goes to substance
abuse, one of the statutory factors. He argues that the frequent moves can properly be
considered under the stability factor. Finally, he argues that Heather's "relationships
with violence" involving Adam and Charles could properly be considered under the
domestic violence factor.
In Craig v. McBride, we concluded that residential stability was a proper
consideration in the best interest analysis.20 It was therefore not an abuse of discretion
for the superior court to consider this evidence.
Similarly, the superior court pointed to Heather's relationship history as
evidence of instability. The court said it had "concerns regarding [Heather's]
relationship with [Charles]. Her relationship with [Adam] is unclear. The court has
19 See Bonjour v. Bonjour , 566 P.2d 667, 668-69 (Alaska 1977).
20 639 P.2d 303, 305 (Alaska 1982).
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concerns about both geographic and emotional stability." But because a parent's history
of relationships marked by violence speaks to the statutory factor of "the length of time
the child has lived in a stable, satisfactory environment and the desirability of
maintaining continuity,"21 the superior court did not abuse its discretion in considering
this evidence.
Further, the court's reference to Heather's relationship history was only
mentioned in passing under the stability factor. The superior court addressed Heather's
questionable decision-making with her boyfriends in more detail in addressing her
capability of meeting the needs of her child. The court found that Heather's having
continued living with Charles after he was arrested for drunkenly waiving a gun and her
return to a house where Adam was having a violent outburst (and potentially her
resumption of a relationship with Adam) were evidence of her poor judgment that
suggested a potential inability to meet her daughter's needs, a statutory factor under the
best interest analysis. Heather makes no argument that this reliance was impermissible
or erroneous, and it appears the superior court properly considered Heather's relationship
history as it related to her daughter.
2. The superior court did not assign disproportionate weight to
certain factors.
Heather also argues that the superior court abused its discretion by giving
insufficient weight to certain factors, while focusing too heavily on others.
First, she argues that the trial court failed to properly consider her capability
and desire to meet her daughter's needs. To support her argument, she points to
evidence that she was involved in her daughter's schooling, that she met her daughter's
basic needs, and that she successfully co-parented with Rudy. But the superior court
21 AS 25.24.150(c)(5).
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emphasized that due to Heather's lack of credible testimony as to what was going on in
her life, it did not really have a good idea of Heather's capability in meeting her child's
needs. Further, the trial court noted that Heather's choice to continue to live with
Charles after the gun incident, as well as her actions on the night of her charge for
driving with a suspended license, raised concerns about her judgment as a parent. In
short, the trial court did not, as Heather argues, give insufficient weight to this statutory
factor; the court simply disagreed with Heather as to how well she met it. Trial courts
are given broad deference to make these determinations, and here the trial court did not
abuse that discretion.
Heather also argues that the trial court abused its discretion by failing to
give sufficient weight to the bond between her and her daughter. The trial court only
briefly addressed this factor, but it did say that there was "love and affection" between
the child and both of her parents, suggesting that the factor did not cut toward one parent
or another. This issue was not in dispute during the trial. A trial court acts within its
discretion when it summarily deals with a factor that is not in dispute and that does not
favor one parent over the other.
Heather also argues that the trial court abused its discretion by giving
insufficient weight to the importance of maintaining continuity. A modification decision
effectively takes this factor into consideration with its threshold question whether
circumstances were changed sufficiently to warrant modification. Because the superior
court did not abuse its discretion in finding a substantial change of circumstances, there
is no basis for concluding that it abused its discretion in finding that instability in
Heather's life weighed in favor of awarding custody to Rudy, despite the fact that it
represented a change in the status quo.
Finally, Heather argues that the superior court gave undue weight to
considerations of Heather's credibility. The court emphasized what it believed to be
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Heather's lack of credibility. In its written findings of fact, the superior court found that
"[t]he real issue in this case is that it is very difficult . . . to gauge exactly what is going
on in [Heather's] life. The court has concerns about [Heather's] credibility . . . . The
court can't believe what [Heather] is saying . . . ." Heather argues that this emphasis on
her credibility was improper because "[a] parent's character is only relevant as it may
be shown to negatively affect the child or the mother's parenting ability." But the
superior court did not frame the credibility issue as a character flaw that weighed against
granting Heather custody. In fact, the superior court expressly declined Rudy's
invitation to address Heather's credibility as a separate factor, saying, "I don't take away
children because I think parents have lied on the stand. Never have done that. Never
will." Instead, the superior court focused on how Heather's lack of credibility made it
difficult for the court to evaluate what was actually going on in her life and raised
concerns about her judgment as a parent. The court observed that Heather's lack of
credibility left "a vacuum of information" for the court to determine Heather's capability
in meeting her daughter's needs, while the evidence showed that Rudy "appear[ed] to
have a very stable life." The court also noted that Heather's lack of credibility "call[ed]
into question [her] judgment as a parent." This is not the sort of irrelevant character
evidence we have previously deemed improper for the trial court to consider.22
22 See Craig v. McBride, 639 P.2d 303, 305 (Alaska 1982) (concluding that
the trial court's references to a mother having borne a child out of wedlock
impermissibly affected custody decision); Bonjour v. Bonjour, 566 P.2d 667 (Alaska
1977) (concluding that the trial court had impermissibly relied on a mother's
cohabitation in determining the child's best interests).
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3. Failing to consider domestic violence and the statutory
presumption was an abuse of discretion.
Heather finally argues that the superior court erred by failing to consider
Rudy's history of domestic violence. Heather argues both that the superior court failed
to consider Rudy's history of domestic violence in the best interest analysis as required
by AS 25.24.150(c)(7) and that the superior court failed to apply the presumption against
awarding custody to a parent with a history of domestic violence as required by
AS 25.24.150(g). Rudy responds that he has presented evidence sufficient to overcome
this rebuttable presumption. Rudy also seems to suggest that Heather had no subjective
or objective concerns about continued domestic violence when she entered the stipulated
custody agreement and that thus Rudy's history is now irrelevant to the issue of custody.
Sometime in 2001, while they were still together, Rudy was convicted of
assaulting Heather. Heather testified that this domestic violence was the reason she
initially took physical custody of her daughter and that it was only after Rudy had
completed "anger management" that the two began the informal arrangement that they
formalized with the 2006 modification stipulation. Rudy testified that he completed a
six-month domestic violence intervention at the Men's Center for Change in Cordova,
but it appears that no court has made a finding as to (1) whether Rudy has a history of
domestic violence as defined by AS 25.24.150(h), or (2) whether Rudy's completion of
this program satisfied his burden of overcoming the presumption under
AS 25.24.150(h).23 Both the original 2002 custody order and the 2006 custody
23 AS 25.24.150(h) provides:
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
(continued...)
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modification were entered by stipulation.
At the most recent trial, the parties' first contested custody proceeding, the
superior court refused to consider Rudy's domestic violence. When Heather's attorney
questioned Rudy about the domestic violence incident, the trial court indicated that it
would not consider evidence of an assault that occurred before the parties' 2006 custody
modification and that collateral estoppel applied to Heather's claim of assault. In its
written findings of fact, the court noted that Heather had asked the court to consider the
episode of domestic violence perpetrated by Rudy, but that "[t]here ha[ve] been no
further episodes or threats of violence between the parents since the 2001 episode." In
its oral findings, the court elaborated a bit, saying "[t]his event occurred well before the
parents' agreement to share custody in 2006."
We addressed a very similar situation in McAlpine v. Pacarro .24 In that
case, the father had assaulted the mother, and the parties had entered into a stipulated
custody agreement granting the mother primary legal custody. The parties subsequently
modified that custody arrangement, though the mother retained physical custody.25 The
father later moved for a modification of custody and was granted primary physical
23(...continued)
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 parent's participation as a custodial parent . . . .
24 262 P.3d 622 (Alaska 2011).
25 Id. at 623.
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custody.26 In 2009, ten years after the initial assault, the mother petitioned for a
modification of custody and asked the trial court to determine the legal effect of the
father's previous assault.27 The trial court refused to hear evidence of domestic violence
on the ground that anything that had happened prior to the most recent custody order was
barred by collateral estoppel and res judicata.28 We concluded that collateral estoppel
did not bar a consideration of evidence of previous domestic violence in a custody case
where the issue was "not adequately addressed at the initial custody determination or
subsequent proceedings."29 In this case, it does not appear that evidence of Rudy's
domestic violence has ever been heard in a custody proceeding, and thus the superior
court erred in refusing to consider evidence of domestic violence.30
Accordingly, we remand this case to the superior court for an evidentiary
hearing solely on the issues whether Rudy has a history of domestic violence under
AS 25.24.150(g), and, if so, whether Rudy has successfully rebutted the presumption of
AS 25.24.150(h).
26 Id. at 624.
27 Id.
28 Id.
29 Id. at 626.
30 In his brief, Rudy says that "McAlpine is distinguishable" because the
mother proceeded pro se, while Heather has had counsel throughout her custody
proceedings. Although in McAlpine we emphasized that "[t]aking prior domestic
violence into consideration is particularly important in cases where a settlement
agreement deciding custody was made by pro se parties with a history of domestic
violence," this does not mean that the rule from McAlpine applies only when one or both
parties are pro se. Id. at 626.
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V. CONCLUSION
For the foregoing reasons, we conclude that the superior court did not abuse
its discretion by finding a substantial change of circumstances, did not rely on improper
character evidence, and did not assign disproportionate weight to the statutory best
interest factors. Because the superior court failed to consider evidence of past domestic
violence, we REMAND for an evidentiary hearing to consider whether Rudy has a
history of domestic violence and, if so, whether he has rebutted the presumption against
awarding custody to a parent with a history of domestic violence.
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