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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Jack C. v. Tally C. (9/7/2012) sp-6706
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
JACK C., )
) Supreme Court No. S-13990
Appellant, )
) Superior Court No. 3AN-07-10724 CI
v. )
) O P I N I O N
TALLY C., )
) No. 6706 - September 7, 2012
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Sharon Gleason, Judge.
Appearances: David R. Edgren, Edgren Law Offices, LLC,
Wasilla, for Appellant. Tally C., pro se, Anchorage,
Appellee.
Before: Carpeneti, Chief Justice, Fabe, Winfree, and
Stowers, Justices.
CARPENETI, Chief Justice.
STOWERS, Justice, concurring.
I. INTRODUCTION
A couple divorced in 2008, and the mother was granted sole legal custody
and primary physical custody of their three children. At the time of the divorce, the
superior court stated that if the father met certain conditions he could return to the court
to seek modification of the child custody order. In 2009, he filed a motion to modify
custody, seeking joint legal custody and increased visitation. The superior court, largely
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adopting a master's report and recommendations, left sole legal custody and primary
physical custody with the mother, but expanded the father's visitation.
The father appeals from the superior court's 2010 custody modification
order. Because the superior court neither committed clear error nor abused its discretion,
we affirm the majority of the superior court's order. But because the superior court's
order fails to explain why it did not order any changes to the father's visitation during
the children's summer vacation, we remand for further explanation regarding summer
visitation.
II. FACTS AND PROCEEDINGS
A. Facts
Jack and Tally1 met in Colorado during the mid-1990s and began a
relationship. In August 2000, they married in California. They had three children during
the course of their relationship: Kaleb, born in 1997; Jason, born in 1998; and Charles,
born in 2001. Jack and Tally separated in July 2007.
B. Proceedings
Tally filed for divorce in October 2007 and petitioned for a domestic
violence protective order against Jack a week later. Although the present appeal relates
to the superior court's September 7, 2010 child custody modification order, many of the
issues raised on appeal regard the same factual circumstances that have existed since the
original divorce filing.
1. December 2007 domestic violence protective order hearing
Following Tally's petition for a domestic violence protective order, a
hearing was held in December 2007. In that hearing, the superior court found that
domestic violence had occurred with regard to two incidents: (1) Jack destroyed Tally's
1 We use pseudonyms to protect the family's privacy.
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cell phone; and (2) Jack made harassing phone calls to Tally at work. The superior court
ordered Jack to enroll in a domestic violence intervention program and the court put in
place a temporary visitation schedule providing that Jack would see the children every
Thursday from 3:30 p.m. to 8:00 p.m. when school was in session, 10:00 a.m. to
8:00 p.m. when school was not in session, and every Sunday from 10:00 a.m. to 8:00
p.m. The court noted that once Jack found suitable housing he could file a motion to
modify custody.
2. Interim hearings
Between the December 2007 protective order hearing and the fall 2008
divorce trial, the parties each filed numerous motions and several hearings were held.
These hearings addressed issues similar to those presently on appeal, including: (1)
visitation; (2) Jack's desire to have the custody order from the domestic violence case
modified; (3) ongoing harassment by Jack and general failure to communicate between
2
the parties; (4) Jack's failure to complete anger management courses as ordered by the
trial court at the protective order hearing; (5) mental health treatment for the children,
particularly Kaleb; (6) property division; and (7) scheduling activities for the children.
3. The custody investigator's findings
On April 10, 2008, the superior court ordered a full custody investigation
to obtain recommendations regarding any custody modification that would be included
2 Jack and Tally have had such serious communication problems that they do
not talk on the telephone; at first they communicated by email, but text messages
eventually became their primary means of communication.
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in the final divorce order. The custody investigator issued his report on September 4,
2008, after meeting with Tally, Jack, and the children several times.3
The investigator primarily described Jack and Tally's relationship through
reports from each side: "Mother reports Father was controlling and critical. She states
she was the primary parent through the relationship. . . . Mother notes Father was
manipulative and mentally abusive." On the other hand, "Father said there was a lot of
yelling in the relationship. Father reports Mother had a drinking problem which remains
an issue." Jack also alleged that Tally used drugs and drove while intoxicated. The
investigator, however, found no evidence that Tally had "an addiction that impair[ed] her
behavior." The custody investigator noted the parties' involvement with the Anchorage
Police Department, including Jack's July 2007 arrest for breaking Tally's cell phone and
Tally's October 2007 arrest for allegedly punching Jack in the mouth (charges related
to this incident were later dropped). The investigator also spoke with the children's
therapist. She indicated that all the children were "deeply stressed about the custody
battle" and recommended that Kaleb receive further psychological evaluation at North
Star, a behavioral health provider.
The custody investigator made several relevant findings and
recommendations. He noted that "[t]he children need to be shielded from the parents'
conflict." He indicated that both parents can meet the children's physical needs but
found that Jack "would likely struggle more . . . since his work has been sporadic and has
taken him out of town." He emphasized the parents' communication issues, stating that
Jack "appears to pressure the children and his obvious depressed mood likely affects the
3 The investigator noted that Jack had yet to complete parent information
forms and that none of his references had responded to the investigator's inquiries. Tally
completed her parent information forms and two of her references responded.
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children. . . . [His] tendency to feel persecuted and always feel he is correct appears to
make it hard for him [to] compromise and work with [Tally]." Similarly, he noted that
Tally "has done things in front of the children that can easily be anticipated to cause
conflict." He found that Tally "appears [cavalier] about ignoring court orders. . . . [and]
these actions are provocative to [Jack] and put the children in the middle of even more
conflict." Although he found no domestic violence, child abuse, or neglect present in
either household, the investigator remarked that Jack's questioning and pressuring of the
children was "inappropriate and harmful to the children." He found that Jack's repetitive
calls to the police for welfare checks exposed the children to the parents' conflict and
were "definitely harmful." He also noted that Jack had not completed his court-ordered
anger management classes and "appears to have delayed starting until there were
repercussions from the court." The investigator found that Jack presented as "depressed
and overwhelmed. He appears to feel persecuted and makes many claims which he does
not back up. . . . He asks for things he needs or wants as necessary for the children."
The custody investigator concluded that Tally "maintained a more stable
home and work. She appears more stable psychologically." The investigator
recommended that Tally have primary physical custody, but that Jack get the children
three weekends out of every four once he completed anger management and his health
was adequate. He also recommended that during the summer, custody be equally shared
on a week on/week off basis. He recommended that the parents share legal custody and
that each inform the other of important events in the children's lives - he felt that
arrangement was the only way that one parent would not exclude the other from major
parenting decisions. The investigator suggested that the children remain in counseling,
that Jack get a psychological assessment to determine if therapy would be beneficial for
him, and that Jack should follow all recommendations of the counselor. Finally, the
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investigator expressly recommended that neither parent speak negatively about the other
nor question the children about the other parent.
4. Fall 2008 divorce trial
Jack and Tally's divorce trial was held in fall of 2008. At the conclusion
of the trial, Superior Court Judge Sharon Gleason awarded sole legal custody and primary
physical custody of the children to Tally and kept Jack's visitation schedule from the
December 2007 domestic violence case in place. In doing so, the court examined the
statutory factors, in particular the relative ability of both parents to meet the children's
needs and provide stability. The court confirmed that Jack had committed acts of
domestic violence against Tally on at least two occasions, so the statutory presumption
affecting custody applied.4 Thus, the court required Jack to take an intervention program
for batterers, which could be satisfied by completion of anger management classes, before
gaining additional unsupervised visitation with the children.
The court also ordered both parents to take a minimum of eight parenting
classes, finding that they were both responsible for putting their children in the middle of
their conflict and noting the "risk of mental harm to the children because of their coerced
participation in these adult issues." It echoed the sentiments of the custody investigator
that Tally's drinking did not rise to a problematic level and that Jack's repeated calls to
the police were much more traumatic for the children. Instead of following the custody
investigator's suggestion to automatically change the visitation schedule upon Jack's
4 See AS 25.24.150(g) ("There is a rebuttable presumption that a parent who
has a history of perpetrating domestic violence against the other parent, a child, or a
domestic living partner may not be awarded sole legal custody, sole physical custody,
joint legal custody, or joint physical custody of a child."). AS 25.24.150(h) defines
"history of perpetrating domestic violence" and specifies ways in which the statutory
presumption may be overcome.
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completion of anger management courses, the court required Jack to return to court upon
completing a psychological assessment and anger management classes if he wished to
modify the visitation schedule. The court expressly noted that it rejected the custody
investigator's suggestion because it wanted an update on each parent's progress with
parenting classes and relationship with the other parent before modifying the existing
custody schedule. It also ordered counseling for the children to continue and specified
that Tally must give Jack 60 days notice if she wished to change the children's school.
5. Jack's 2009 motion to modify custody
On August 28, 2009, Jack filed a motion to modify custody asking for
shared legal custody because Tally was allegedly "making poor decisions" regarding the
children and violating court orders, and he felt that he was entitled to 50/50 physical
custody because he had met all the court's requirements. Tally opposed the motion,
claiming that Jack had continued to harass her and there had been no substantial change
in circumstances justifying a change. The matter was referred to Master Jonathan Lack
in November 2009 and a hearing was scheduled for January 26, 2010.
Before the hearing on the motion to modify custody, the parties continued
to have communication problems regarding the children. On September 21, 2009, a
hearing was held in front of the master on Jack's motion to change the children's school.
Jack alleged that he did not receive adequate notice before Kaleb was moved. Tally
claimed that she had given Jack notice at the end of the previous school year, sending him
a letter that she would allow Kaleb to attend a different school if he got his grades up at
the German language school he had been attending with his brothers. The master took
these issues under advisement.
At the January 26, 2010 hearing, Jack asked for a continuance on his motion
for shared physical custody because he had reported Tally to the Office of Children's
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Services (OCS) for child abuse and called the Anchorage Police Department to report an
assault on a child arising out of the same incident; Jack reported that both of these cases
were still under investigation. Thus, instead of deciding the custody dispute, this hearing
dealt with other issues between the parties including whether Jack's psychological
evaluation was adequate, Kaleb's school problems, and visitation issues.
On April 27, 2010, the master held a hearing on Jack's motion to modify
custody. Jack claimed that he had completed the "few issues [from the divorce order] that
[he] needed to take care of in order to have the 50/50 custody." He also told the master
that he had made a referral to OCS because he believed the children were being abused,
but he did not have any witnesses from OCS appear at the hearing because they had
temporarily closed the file pending the receipt of a report from the Anchorage Police
Department. Tally's attorney later pointed out during cross-examination that the OCS
case was closed because the allegations were unsubstantiated. Jack also asserted that
Tally had not satisfied her obligation to complete child parenting classes. Lastly, Jack
claimed that "the co-parenting issues . . . . are just running out of control," specifically
regarding Kaleb's schooling and behavior outbursts, and visitation with the children.
Tally denied the claims of abuse and recounted what happened during the
alleged abuse incident. She called her own expert to question the adequacy of Jack's
psychological evaluation. She also maintained that she did complete the requisite
parenting classes through an online program. She noted repeated problems involving
Jack, including: when he took Kaleb to get his ear pierced; when he angrily confronted
her attorney at the attorney's office; when he allegedly bumped her in the locker room at
one of the children's hockey games; and ongoing behavioral problems with the children
that she believed resulted from Jack's influence. The master took all of this information
under advisement and indicated he would issue his report at a later date. Another hearing
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was held between the parties in front of the superior court in June 2010 in order to arrange
summer travel.
The master issued his Report and Order in July 2010 and the superior court
issued its final decision on the motion to modify custody in September 2010. In its order,
the superior court adopted the findings and conclusions of the master with a few
interlineations. The court found that there had been a change in circumstances and that
both parties had substantially complied with its requirements from the November 2008
order. It then went through a best interests analysis, noting that "[b]ecause of the
complete breakdown in the ability of the parties to effectively communicate, joint legal
custody is not appropriate in this matter." While elaborating on the best interests factors,
the court stated that it was clear that both parents loved their children. However, it also
found both parents at fault for their substandard communication; "[Tally] does what is
minimally required to notify [Jack] of decisions regarding the children," but Jack's
behavior in the locker room and especially at Tally's attorney's office was "unreasonable
in light of the prior allegations in this matter and shows a lack of insight into his
behavior." The superior court ordered that Tally maintain sole legal custody and primary
physical custody of the three children. Jack was granted visitation one day during the
school week and overnights on alternate weekends. No change for summer was found
in this schedule. The court also laid out specific notice provisions if Tally wished to
change the children's schools or take the children for medical or mental health treatment.
The court set provisions for Tally to substitute visitation periods if the children had
extracurricular activities that would take them out of state, and explicitly allowed Jack to
attend school or extracurricular activities outside of his scheduled visitation time,
provided he gained prior approval from the child's teacher and notified Tally.
Jack appeals the superior court's custody order.
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III. STANDARD OF REVIEW
A motion to modify custody is governed by AS 25.20.110, which 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 circumstances requires the modification . . . and the
modification is in the best interests of the child."5 "We will reverse a custody
modification order only if the record shows an abuse of discretion or if controlling
factual findings are clearly erroneous."6 "An abuse of discretion in child custody awards
occurs when the trial court considers improper factors, fails to consider statutorily
mandated factors, or gives too much weight to some factors."7 Findings of fact will not
be set aside unless clearly erroneous, which means that "a review of the record leaves us
'with the definite and firm conviction that the superior court has made a mistake.' "8
The findings of a master that are adopted by the superior court are
considered the findings of that court.9 "The trial court's factual findings enjoy particular
deference when they are based primarily on oral testimony, because the trial court, not
5 AS 25.20.110(a).
6 William P. v. Taunya P., 258 P.3d 812, 814 (Alaska 2011) (quoting Long
v. Long , 816 P.2d 145, 150 (Alaska 1991)) (internal quotation marks omitted).
7 Id . (quoting Long , 816 P.2d at 150) (internal quotation marks omitted).
8 Id. (quoting D.M. v. State, Div. of Family & Youth Servs., 995 P.2d 205,
207-08 (Alaska 2000)); see also Alaska R. Civ. P. 52(a) ("Findings of fact shall not be
set aside unless clearly erroneous . . . .").
9 Alaska R. Civ. P. 52(a).
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this court, performs the function of judging the credibility of witnesses and weighing
conflicting evidence."10
IV. DISCUSSION
A. The Trial Court's Findings Of Fact Were Not Clearly Erroneous.
In its final custody order, the superior court largely adopted the Master's
Report and Order, which contained: a section entitled "Findings of Fact," which
summarized the information presented at the April 27, 2010 custody hearing before the
master; a section entitled "Conclusions of Law," which tied additional specific facts to
the statutory best interests factors; and a section entitled "Recommendations," which
made specific recommendations regarding custody and visitation.
Jack argues that the superior court's "findings of fact section . . . is entirely
devoid of any coherently stated finding[s], much less ones that are stated 'specially' as
required under Civil Rule 52."11 He points out an "absence of numbered paragraphs"
and believes that the mere summary of testimony presented at the April 2010 hearing
leaves "the reader with no sense that any particular fact is being cited for any specific
reason." Jack does acknowledge that the court made discrete findings of fact in the
section entitled "Conclusions of Law," but he contends that the court's analysis
regarding those additional facts was insufficient.
Tally responds that "[t]here is no finding referenced by the appellant as
being a clearly erroneous finding." She argues that, while Jack disagrees with some of
the conclusions drawn from the court's findings, his arguments effectively address the
10 William P., 258 P.3d at 814 (quoting Misyura v. Misyura , 242 P.3d 1037,
1039 (Alaska 2010)) (internal quotation marks omitted).
11 Alaska Civil Rule 52(a) provides that "[i]n all actions tried upon the facts
without a jury or with an advisory jury, the court shall find the facts specially."
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weight given to these findings rather than any alleged "impropriety." She then concludes
that "given that the majority of the evidence placed before the court at the hearing was
through oral testimony . . . , the court's findings should be given 'particular deference.' "
The section of the court's report entitled "Findings of Fact," as Jack
correctly points out, primarily summarizes the parties' respective presentations from the
April 2010 hearing. In particular, the court identified facts regarding Jack and Tally's
respective efforts to take child parenting classes, Jack's anger management classes, and
Jack's psychological examination. Each of these findings was important to the court's
conclusion that Jack and Tally had "substantially complied with the requirements
outlined by Judge Gleason in November of 2008."
After finding changed circumstances, the court then conducted a best
interests analysis pursuant to AS 25.24.150, which is set forth in the section entitled
"Conclusions of Law." As Jack emphasizes, the court's best interests analysis references
additional discrete findings of fact not included in the section entitled "Findings of Fact."
In particular, these facts include that: the children all have difficulty in school; Kaleb in
particular has "significant mental health issues" that need to be addressed; Tally is more
in tune "to the children's mental health issues and has a greater desire to meet those
needs"; Jack cannot separate himself from what occurs with the children and sees
changes to the children's school and activities as attacks against him; both parents have
"substantial love and affection for the children and the children love their parents"; there
have been "significant upheavals" in the children's schooling, but these do not
necessarily represent bad choices; the children may need more stability in their lives;
Tally does "what is minimally required to notify [Jack] of decisions regarding the
children" and the communication between Jack and Tally is "still, even when limited to
email and text messaging, openly hostile"; Jack is "reactionary" to Tally's texts and her
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attempts to inform him of events in the children's lives; since the divorce "there has been
no domestic violence, but the hostility and anger between the parties has not subsided";
the "failure of [Jack] to take every precaution to avoid physical contact with [Tally]
reflects a complete lack of situational and historical awareness"; and the "numerous
motions to modify the visitation schedule" and resulting "return to court to address these
issues is placing exceptional strain on the parties, and . . . is most likely negatively
affecting the children."
Although Jack takes issue with the court's overall organizational scheme,
he acknowledges that the court made numerous specific findings of fact. And as Tally
correctly points out, Jack does not identify a single, specific finding as having been made
in clear error - rather, Jack insists that the findings should have been stated more
"coherently" or "specially." But the fact that the report was not drafted in a particular
format does not constitute a basis for challenging the court's findings on appeal.
Additionally, we agree with Tally that the majority of Jack's argument addresses the
weight accorded specific findings of fact, rather than the factual findings themselves, and
is therefore instead relevant to a consideration of the court's discretion. The superior
court's findings are sufficient to allow us to discern what factors and considerations the
court deemed important in ruling on Jack's motion to modify custody. We conclude that
the superior court's findings were not clearly erroneous.
B. The Superior Court Did Not Abuse Its Discretion In Making Its Final
Custody Determination.
Jack argues that the superior court incorrectly weighed its factual findings
in conducting its best interests analysis and then reached improper legal conclusions
from the evidence presented. Jack effectively contends that the superior court abused its
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discretion by considering "improper factors," failing "to consider statutorily mandated
factors," and giving "too much weight to some factors."12
Alaska Statute 25.24.150(c), which governs custody determinations,
mandates that a court "determine custody in accordance with the best interests of the
child." In determining custody the court must 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;
(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 . . .
(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. [13]
12 See William P., 258 P.3d at 814.
13 AS 25.24.150(c).
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In adopting the master's conclusions of law and ultimately his
recommendations, the superior court identified each of the best interests factors and
specifically analyzed each factor in turn. Based on its analysis of the enumerated factors,
the superior court made its final custody determination. The court's custody
determination ordered that Tally would continue to have sole legal custody of the three
children, Tally would continue to have primary physical custody of the children, Jack
would continue to have visitation on Thursdays, Jack would have alternate weekends
from Friday at 6:00 p.m. to Sunday at 3:00 p.m., Jack and Tally could submit a proposed
schedule for Thanksgiving and Christmas, Tally would be permitted to substitute
visitation times, and Jack would be permitted to attend school and extra-curricular
activities outside of his specified visitation times.
Jack advances a number of arguments that the superior court abused its
discretion. Jack primarily contends that the superior court abused its discretion by failing
to give consideration to the "very specific findings" of the 2008 custody investigation,
which had recommended increased visitation with Jack, or to at least omit specific
findings as to why the custody investigator's recommendations were no longer in the
best interests of the children. Jack believes that the superior court made him "the
equivalent of a judicial promise" in its 2008 divorce order and, now that he has
completed the court's requirements, its failure to modify custody according to the
investigator's report is a "grossly unjust and erroneous situation."
Regarding the court's specific best interests analysis, Jack argues that there
are a number of facts that should have weighed more heavily in the court's
determination, particularly in regard to the court's consideration of Jack's and Tally's
respective capability and desire to meet the children's needs. These facts specifically
include: the "significant upheavals" caused when Tally changed the children's schools;
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the court's conclusion that Tally's continuing to bring matters before the court was
negatively affecting the children; the children, particularly Kaleb, performing poorly in
school since Tally was granted full legal and primary physical custody; and Kaleb
continuing to suffer significant mental health issues. In conclusion, Jack argues that "the
facts developed . . . in modifying the parties' custody order were woefully inadequate."
Jack also defends certain actions he took that he feels the court
characterized in a negative manner. In particular, Jack argues that: the fact he felt
threatened by Tally's actions was warranted "[i]n light of the complete failure of the trial
court over the ensuing course of years to do anything to [Tally] when he complained
about her violations," the incident between Jack and Tally's attorney demonstrates Jack's
recognition that his behavior needs to be controlled and channeled away from Tally, and
the physical encounter between Jack and Tally in a locker room was merely an accidental
touching.
Tally counters that the superior court did not abuse its discretion. She
asserts that the "court appropriately made the necessary [f]indings of [f]act and
considered the relevant statutory criteria to support the modified custody award issues."
The superior court did not abuse its discretion in issuing its custody
modification order. The superior court properly identified the statutory best interests
factors and then applied its factual findings to each enumerated factor. Although Jack
disagrees with the court's analysis, the court's findings of fact are well supported by the
evidence and the court's conclusions properly align with its stated findings. Overall, the
court found the best interests factors favored leaving sole legal custody and primary
physical custody with Tally, but the court did expand Jack's visitation by granting him
alternate weekends, which included overnights on Friday and Saturday. Although Jack
would characterize some of his actions differently, he has presented no evidence that the
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court considered improper factors, failed to consider the appropriate statutory factors, or
improperly weighed the relative factors.
Much of Jack's argument focuses specifically on the custody investigator's
report completed in September 2008, before the divorce trial had even occurred and well
before the present motion to modify custody was filed. Jack's argument, however, fails
to consider the proper focus of a motion to modify custody, which is statutorily required
to focus on a change in prior circumstances before any modification to custody may be
made.14 Thus, the superior court properly focused on the parties' present circumstances.
Moreover, since 2008 the parties have had frequent court involvement and it became
apparent to the court that their inability to effectively communicate precluded any sort
of joint custody award. Even the custody investigator recognized the importance of
communication - testifying during the divorce trial that "if [Jack and Tally's]
communication didn't improve and stayed the way it is now, in the future I might
recommend differently, that it may not be possible for them to share legal custody."
Moreover, the custody investigator also stated that his recommendations would be
different if Jack did not learn to control his behavior. Jack's behavior since 2008 led the
court to different conclusions than the custody investigator had originally recommended,
and the superior court properly considered the parties' current circumstances.15 Finally,
we reject Jack's assertion that the superior court's prior statements amounted to a
"judicial promise." Despite Jack's characterization otherwise, the superior court
14 AS 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
circumstances requires the modification of the award and the modification is in the best
interests of the child."
15 Nor was the superior court required to make any special findings regarding
why the court chose not to follow the 2008 custody investigator's report.
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explicitly noted in 2008 that, if and when Jack returned to court, a best interests analysis
would then be conducted. The superior court did not abuse its discretion.
C. The Superior Court Failed To Adequately Explain Its Decision To
Make No Change To Jack's Summer Visitation Schedule.
Jack challenges the "absence of any summer recommendation" in the
superior court's September 2010 order. In its December 2007 Domestic Violence
Protective Order, the superior court put in place a visitation schedule providing that Jack
would have visitation every Thursday from 3:30 p.m. to 8:00 p.m. when school was in
session, from 10 a.m. to 8:00 p.m. when school was not in session, and every Sunday
from 10:00 a.m. to 8:00 p.m. The court did not modify this visitation schedule in its
order following the fall 2008 divorce trial. The superior court's September 2010 order
put in place a visitation schedule providing that Jack would have visitation every
Thursday from 4:00 p.m. to 8:00 p.m. and alternate weekends from Friday at 6:00 p.m.
to Sunday at 3:00 p.m. The order did not provide for any changes to Jack's regular
visitation schedule when school is not in session. Neither the superior court's order nor
the record on appeal provides adequate explanation as to why the court's September
2010 visitation order failed to provide for any changes to Jack's visitation with the
children when school is not in session, and it is possible that the lack of any such
provision was merely an oversight. Because an adequate explanation regarding visitation
when school is not in session does not appear in the record, we therefore remand to the
superior court for further explanation on this one limited issue.
V. CONCLUSION
Because the superior court's factual findings were not clearly erroneous,
and because the superior court did not abuse its discretion in modifying custody, we
AFFIRM the majority of the superior court's final custody order. But because the
superior court did not explain why its final order provided no changes to the visitation
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schedule during the children's summer vacation, we REMAND to the superior court for
further explanation on this one limited issue.
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STOWERS, Justice, concurring.
Though I agree generally with the court's opinion, I conclude there is no
requirement for the superior court to explain why it did not change the father's summer
visitation. Under the superior court's custody order, the father will have visitation in the
summer on the same schedule as the rest of the year. Given the facts of the case, can this
court conclude that such a summer schedule is an abuse of discretion? I cannot. I
understand that the court does not find an abuse of discretion, but the court apparently
concludes some additional explanation by the superior court is necessary to evaluate
whether the failure to modify the summer schedule was within the superior court's
discretion. Again, I conclude that it was an acceptable exercise of discretion for the
superior court not to modify the summer visitation schedule. In my view, no further
explanation is required. But no harm arises from a remand order to provide the superior
court with an opportunity to explain its thinking, so I do not dissent from the opinion.
-20- 6706
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