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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Mallory D. v. Malcolm D. (12/28/2012) sp-6740

Mallory D. v. Malcolm D. (12/28/2012) sp-6740

        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 



MALLORY D.,                                    ) 

                                               )       Supreme Court No. S-14436 

                Appellant,                     ) 

                                               )       Superior Court No. 3PA-09-01846 CI 

        v.                                     ) 

                                               )       O P I N I O N 

MALCOLM D.,                                    ) 

                                               )       No. 6740 - December 28, 2012 

                Appellee.                      ) 

                                               ) 



                Appeal from the Superior Court of the State of Alaska, Third 

                Judicial District, Palmer, Eric Smith, Judge. 



                Appearances: Mallory D., pro se, Palmer, Appellant.  Tara 

                Logsdon, Golter & Logsdon, P.C., Palmer, for Appellee. 



                Before:     Fabe,     Chief   Justice,   Carpeneti,    Winfree,    and 

                Stowers, Justices. 



                STOWERS, Justice. 



I.      INTRODUCTION 

                Malcolm D. and Mallory D.1 were married and had three children, Jason, 



Brooke,     and   Megan.     In  August     2009   Malcolm     and   Mallory    filed  a  petition  for 



dissolution of marriage.      The parties agreed to joint legal custody and shared physical 



        1       Pseudonyms have been used throughout this opinion to protect the identity 



of the parties. 


----------------------- Page 2-----------------------

custody.    In May 2010 Mallory moved to modify custody; she wanted sole legal and 



primary physical custody of Brooke and Megan, as well as additional visitation with Jason. 



Mallory asserted a change in circumstances because Brooke reported being singled out 



among the children for punishment and Malcolm being mean to her.  Malcolm opposed, 



contending there was no change in circumstance to warrant custody modification and 



that the modification would not be in the best interests of the children. 



                The superior court found that there was a change in circumstance regarding 



Brooke and Megan but denied Mallory's motion to modify custody for the daughters. 



                The court found that Malcolm and Mallory had each committed two acts 



of domestic violence during the marriage but that neither parent was less likely than the 

other to perpetrate domestic violence in the future.2           The superior court concluded that 



under these circumstances, the presumption in AS 25.24.150(g), which would preclude 



a parent from obtaining legal or physical custody of the children if that parent had a 



history of domestic violence against the other parent, did not apply to either parent in this 



case.  The superior court fashioned the custody decree taking into consideration the best 



interests of the children notwithstanding the requirements of AS 25.24.150(h). 



        2       The superior court found that "neither party is less likely to [perpetrate] the 



violence than the other party."          The court was attempting to follow the language of 

AS 25.24.150(i)(1) which states in pertinent part: 



                (i)  If   the   court   finds   that   both   parents   have   a   history   of 

                perpetrating domestic violence under (g) of this section, the 

                court shall either 



                        (1) award sole legal and physical custody to the parent 

                        who is less likely to continue to perpetrate the violence 

                        and     require   that   the  custodial    parent   complete     a 

                        treatment program . . . . 



                                                   -2-                                              6740
 


----------------------- Page 3-----------------------

                We conclude that when both parents are found to have a history of domestic 



violence   and   neither   parent   is   more   likely   to   perpetrate   violence   than   the   other,   the 



superior    court   has   the  discretion   to  determine    that  the  presumption      set  forth  in 



AS 25.24.150(g) does not apply.          We further conclude that the superior court did not 



clearly err when making its factual findings and did not abuse its discretion when it 



weighed the best interest factors under AS 25.24.150(c) and determined that custody 



should not be modified. 



II.     FACTS & PROCEEDINGS 



                Malcolm D. and Mallory D. were married in 1993.   They have three minor 



children, Jason, Brooke, and Megan.            In August 2009 Malcolm and Mallory filed a 



petition for dissolution of marriage.  In their petition, they checked the "yes" box for the 



question, "Has there been any domestic violence during the marriage (whether or not a 



complaint was filed)?"       The parties agreed to joint legal custody and shared physical 



custody on a week on/week off basis. 



                Around September 2009 Malcolm starting dating Holly, a family friend, 



and she and her daughter moved in with Malcolm and his children in November 2009. 



Holly's daughter had been friends with Brooke before the dissolution. 



                Master David L. Zwink held a hearing on the dissolution petition in October 



2009 at which both Malcolm and Mallory appeared pro se.  The parties later submitted 



a document updating their custody arrangement so that Jason would spend 70% of his 



time with Malcolm and 30% of his time with Mallory.                 In January 2010 the superior 



court   approved     the  master's   recommended        decree   of  dissolution   of  marriage    and 



memorialized the custody arrangement in a child support order. 



                In May 2010 Mallory moved to modify custody. She sought sole legal and 



primary physical custody of Brooke and Megan, as well as additional visitation with 



Jason    to  reach   the  previously    agreed-upon     70/30   split.   In  her  affidavit   Mallory 



                                                 -3-                                            6740
 


----------------------- Page 4-----------------------

chronicled several text message exchanges between herself and Brooke in which Brooke 



stated that she was singled out among the children (including Holly's daughter) and 



punished, and that Malcolm was mean to her or yelled at her.  Malcolm contended there 



was no change in circumstance to warrant custody modification and that the modification 



would not be in the best interests of the children.   In his affidavit Malcolm stated that he 



had a close relationship with his children and the conflict with Brooke stemmed from her 



dislike of chores and her complaints to her mother about Malcolm's insistence that she 



do them. 



                A custody investigator interviewed Malcolm and Mallory, as well as Jason, 



Brooke, and Megan, and filed a limited custody investigation report in November 2010. 



The report explained, "This brief investigation and report should not be considered a 



substitute for the more in-depth analysis that is required to develop recommendations for 



long-term      placement     in  the   parties'   divorce   or   custody    action."     The    custody 



investigator's assessment stated: 



                Based   on   the   children's   reports   there   appears   to   be   some 

                conflict between Father and [Brooke] which appears to be 

                typical of many parents and their adolescent children.             In a 

                family where there is a divorce, children can easily learn to 

                manipulate their parents when they don't like the punishment 

                they are receiving. [Brooke] appears to be doing this; running 

                to Mother when she does not like what happens at Father's. 

                While      there   is  nothing     inappropriate     about    [Brooke] 

                confiding in her mother, the problem arises when there is a 

                perceived alignment with the child by one parent against the 

                other parent.  This can serve to undermine the other parent's 

                authority and relationship with the child.         Like all children, 

                [Brooke] needs to learn to resolve conflict and deal with the 

                consequences of her actions. 



                On April 4, 6, and May 31, 2011, Superior Court Judge Eric Smith held a 



bench trial on two issues - the custody modification and the division of marital assets, 



                                                  -4-                                             6740
 


----------------------- Page 5-----------------------

the family home.3      The bulk of the testimony was about the parents' relationship with 



Brooke, who had just turned 13. 



                Because Mallory testified that Malcolm committed domestic violence, the 



court and the attorneys for the parties spent significant time discussing AS 25.24.150(g) 



which   states,   "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."4         The court stated that because this rebuttable 



presumption is inflexible, if it found that Malcolm had a history of committing  domestic 



violence in the marriage, Mallory would have to be awarded sole legal and physical 



custody of all three children (as opposed to Jason staying with his father), and Malcolm 



would have to enroll in a batterer's program.  Malcolm also testified to two instances of 



domestic violence by Mallory when Mallory slapped him.   The court discussed how the 



statute was silent if the court were to find that both Malcolm and Mallory had a history 



of committing domestic violence but neither was likely to continue to perpetrate the 

violence.5 



        3       Mallory does not appeal the court's decision to deny her motion to require 



Malcolm to buy out her interest in the home. 



        4       AS 25.24.150(h) defines a "history of perpetrating domestic violence":  "A 



parent has a history of perpetrating domestic violence under (g) of this section if the 

court finds that, during one incident of domestic violence, the parent caused serious 

physical injury or the court finds that the parent has engaged in more than one incident 

of domestic violence." 



        5       AS 25.24.150(i) provides: 



                If   the   court   finds  that   both   parents    have   a  history   of 

                perpetrating domestic violence under (g) of this section, the 

                                                                                         (continued...) 



                                                   -5-                                             6740
 


----------------------- Page 6-----------------------

                 The court issued an order finding that there was a change in circumstances 



regarding Brooke and Megan but denying Mallory's motion to modify custody for the 



daughters.      It granted Mallory's motion regarding visitation with Jason.                In its 19-page 

order the court addressed each of the custody criteria outlined in AS 25.24.150(c).6                       It 



        5(...continued) 



                 court shall either (1) award sole legal and physical custody to 

                 the parent who   is less likely   to   continue to   perpetrate   the 

                 violence   and   require   that   the   custodial   parent   complete   a 

                 treatment program; or (2) if necessary to protect the welfare 

                 of the child, award sole legal or physical custody, or both, to 

                 a suitable third person if the person would not allow access 

                 to a violent parent except as ordered by the court. 



        6        Alaska Statute 25.24.150(c) states: 



                 The court shall determine custody in accordance with the best 

                 interests    of  the   child  under    AS    25.20.060-25.20.130.         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;
 



                 (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 

                                                                                            (continued...) 



                                                     -6-                                               6740
 


----------------------- Page 7-----------------------

found   that   Malcolm   and   Mallory   "have   different   expectations   for   the   children   and 



different disciplinary styles" and that tension existed between Brooke and Malcolm but 



was   improving.      The   court   also   addressed   the   domestic   violence   issue,   finding   that 



Malcolm and Mallory had each committed two acts of domestic violence during the 



marriage.    The court explained: 



                 Since both parties committed two acts of domestic violence 

                 on the other, they each have a history of domestic violence as 

                that    term   is  defined    by   AS   25.24.150(h).       Pursuant     to 

                AS     25.24.150(i)(1),     the   court   accordingly     must   evaluate 

                which      of   the  parties   is  less   likely   to  [perpetrate]     the 

                violence.[7]    The court finds that neither party is less likely 



                than the other to do so.       The incidents of violence between 

                the parties occurred during arguments fueled by alcohol.  The 

                relationship was strained.        The court accordingly concludes 

                that    the  violence    was   situational,   caused    by   the  specific 



        6(...continued) 



                 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. 



        7        The court found there was "absolutely no need to send the children to a 



third party."    See AS 25.24.150(i), quoted in footnote 4. 



                                                    -7-                                              6740
 


----------------------- Page 8-----------------------

                 dynamic between the parties, and is not likely to recur by 

                 either party.
 

                                                  . . .
 



                 AS 25.24.150(i)(1) does not address the situation before the 

                 court, where neither party is less likely to [perpetrate] the 

                 violence than the other party.  The court concludes that under 

                 these     circumstances,       the    presumption        set   forth    in 

                 AS 25.24.150(g) does not apply to either party and hence that 

                 the court is free to fashion a custody decree that meets the 

                 best     interests    of    the   children      notwithstanding        the 

                 requirements of AS 25.24.150(h). 

                 As noted above, there was domestic violence in the marriage. 

                 But because it was situational and because both parties are 

                 unlikely to repeat these actions, the court finds that domestic 

                 violence is not a factor that precludes the parties from sharing 

                 custody of the girls. 



Mallory filed a motion to reconsider which the superior court denied. 



                 Mallory, acting pro se, appeals. 



III.    STANDARD OF REVIEW 



                 The   superior   court   has   "broad   discretion   in   its   determination   of   child 

custody."8    We will not set aside the superior court's child custody determination "unless 



its factual findings are clearly erroneous or unless it abused its discretion."9  We will find 



the trial court's underlying factual findings clearly erroneous only "when our review of 



the entire record leaves us 'with a definite and firm conviction that a mistake has been 

made.' "10    "The trial court's factual findings enjoy particular deference when they are 



based primarily on oral testimony, because the trial court, not this court, judges the 



        8        Cusack v. Cusack, 202 P.3d 1156, 1158-59 (Alaska 2009). 



        9       Id. at 1159. 



        10      Millette     v.   Millette ,   177    P.3d   258,    261    (Alaska     2008)     (quoting 



Dingeman v. Dingeman , 865 P.2d 94, 96 (Alaska 1993)). 



                                                    -8-                                              6740
 


----------------------- Page 9-----------------------

credibility of witnesses and weighs conflicting evidence."11            "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.' "12 



Whether the trial court applied the correct legal standard in its custody determination 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."13 



IV.     DISCUSSION 



        A.      The Superior Court's Factual Findings Were Not Clearly Erroneous. 



                1.      The domestic violence 



                Mallory argues that the superior court erred when it determined that both 



she   and   Malcolm   each   committed   two   acts   of   domestic   violence.     She   asserts   that 



Malcolm committed more than two acts and that there was no "credible evidence" that 



she had committed any. 



                The court did not clearly err when it found that each party committed two 



acts of domestic violence. Mallory testified that Malcolm had been physical with her two 



times - choking her during a camping trip and similarly attacking her in their home. 



Malcolm testified that Mallory slapped him on two occasions. The court acknowledged, 



"It was difficult to assess the credibility of these contentions.  There were no witnesses 



. . . [and the] alleged violence never came up while the parties were engaging in marital 



counseling   with   Tom   Lytle."       The   court   relied   on   the   testimony   of   Dot   Littleton, 



        11      Sheffield v. Sheffield, 265 P.3d 332, 335 (Alaska 2011) (internal quotation 



marks omitted). 



        12      Id. (quoting Long v. Long , 816 P.2d 145, 150 (Alaska 1991)). 



        13      Nelson      v.   Nelson ,    263    P.3d    49,    52   (Alaska     2011)     (quoting 



McQuade v McQuade , 901 P.2d 421, 423 n.3 (Alaska 1995)). 



                                                  -9-                                            6740
 


----------------------- Page 10-----------------------

Mallory's   therapist,   to   corroborate   Mallory's   testimony   regarding   the   two   acts   that 



Malcolm allegedly committed.            Littleton testified that Mallory had reported these two 



acts to her in their sessions. 



                Mallory      asserts   that  the  record    supports    two   additional    instances   of 



domestic violence by Malcolm because she alleges that Malcolm grabbed her arm and 



pushed a coffee   table across a room during an argument.                  Malcolm conceded in an 



affidavit before the superior court that he grabbed Mallory's arm and pushed a coffee 



table during this argument, but he asserts that this was not domestic violence.  Mallory's 



testimony at trial included the allegation that Malcolm frightened her by pushing a coffee 



table, but she did not mention Malcolm grabbing her arm. Littleton also did not mention 



Malcolm grabbing Mallory's arm when she described how Mallory recounted this story 



during therapy. 



                It is the trial court's responsibility to judge the credibility of witnesses and 

weigh conflicting evidence.14        The court did so in making its findings regarding whether 



these confrontational      incidents rose to the level of domestic violence.           It was not clear 



error for the court to decline to view the grabbing of the arm and pushing of the coffee 



table as instances of domestic violence when some of the conflicting testimony from the 



witnesses and the parties suggested the incidents were not domestic violence, or were not 



contemporaneously perceived to be domestic violence. 



                Although Mallory testified that she had not committed any acts of domestic 



violence, Malcolm testified to her twice slapping him, and Littleton testified that she had 



a vague memory of Mallory admitting to pushing Malcolm during one of their therapy 



sessions.    Again,   it   was   not   clear   error   for   the   superior   court   to   find   that   Mallory 



        14      See Sheffield, 265 P.3d at 335. 



                                                   -10-                                               6740 


----------------------- Page 11-----------------------

committed two acts of domestic violence because it is the trial court's responsibility to 

judge the credibility of witnesses and weigh conflicting evidence. 15 



                2.	     The finding that neither party is less likely than the other to 

                        perpetrate domestic violence 



                Mallory argues that it was error for the superior court to find that neither 



party was less likely than the other to perpetrate violence and that the violence that had 



occurred was situational.       Mallory contends that the marriage counselor, Tom Lytle, 



testified that Malcolm had anger problems which were made worse by drinking alcohol, 



and from this Mallory argues that Malcolm was more likely than Mallory to perpetrate 



domestic violence.      The court acknowledged that Lytle's testimony was "concerning" 



but    recognized    that   Malcolm    had   been   in  counseling    with  Brooke   to   address   his 



parenting skills and that Malcolm's fiancée, Holly, "testified credibly" that there had 



been no domestic violence since she and Malcolm started living together.  Based on the 



evidence presented, it was not clear error for the court to determine that the discrete 



instances of domestic violence were situational and that "neither party is less likely" than 



the other to perpetrate the domestic violence. 



                3.	     The court's characterization of Brooke as a "currently difficult 

                        teenager" 



                Mallory takes issue with the superior court's passing characterization of 



Brooke   as   a   "currently   difficult   teenager."   The   court   stated   that   Malcolm   was   in 



counseling with Brooke "to learn the necessary tools to interact in a positive way with 



a currently difficult teenager."  Mallory argues that the record reflects that Brooke only 



had difficulties with her father, but that her school counselor had testified that Brooke 



was a nice girl. 



        15      See id. 



                                                 -11-	                                             6740 


----------------------- Page 12-----------------------

                The superior court did not clearly err when characterizing Brooke as a 



"currently difficult teenager."  The child custody investigator reported Jason stating that 



Brooke was "sassing" Malcolm and "being rude or mean to Megan."   Malcolm testified 



that   Brooke   lied   to   him,   which   also   comports   with   what   he   told   the   child   custody 



investigator.    These kinds of actions would warrant a teenager being characterized as 



"difficult." 



                4.	      The   finding   that   Malcolm   is   taking   steps   to   learn   from      his 

                         previous parental errors 



                Mallory argues that the superior court misunderstood the evidence about 



Malcolm's counseling efforts and that the counseling he attended with Brooke was for 



Brooke's   benefit,   not   his.    She   argues   that   it   was   "improper"   for   the   court   to   give 



Malcolm "credit" for taking steps to learn from his previous parental errors. 



                There is no indication that the superior court misunderstood the evidence 



presented at trial.     Malcolm testified that he was not in independent counseling and 



acknowledged that he struggled with working on recognizing other people's emotional 



needs.   He testified that he had been to counseling with Brooke five to eight times and 



that things were getting better   between   them.           He described some strategies he, the 



counselor, and Brooke had developed regarding Brooke's cell phone use.   The superior 



court did not clearly err in finding that Malcolm "is taking steps to try to learn from [his] 

errors and not to repeat them" by attending Brooke's counseling sessions.16 



        16      We have considered Mallory's other arguments alleging that the superior 



court made erroneous findings of fact, particularly with regard to Mallory's relationship 

with her therapist.       We conclude that the superior court did not clearly err in making 

these findings, or if there was error, any error was harmless. 



                                                   -12-	                                              6740 


----------------------- Page 13-----------------------

        B.	     The Superior   Court Did Not Abuse Its Discretion When It Denied 

                Mallory's Motion To Modify Custody. 



                1.	     The    superior     court's    determination      that   both    parents    are 

                        equally able to meet the needs of their children 



                Mallory argues that the superior court should not have determined that both 



parents were equally able to meet the physical, emotional, mental, religious, and social 



needs of the children under AS 25.24.150(c)(2), contending that Malcolm did not meet 

the needs of the children as well as she did.17      For support Mallory points to three issues: 



Megan's      health;  allegations    that  Megan     got  hurt  while   Malcolm     was   drunk;    and 



Malcolm's conflicts with Brooke. 



                Mallory argues that Malcolm took Megan off of a gluten-free diet "with no 



medical oversight and without seeking a professional opinion." Megan was complaining 



of stomach aches and headaches, and Mallory surmised it was a gluten allergy because 



she has a similar allergy.     Megan's pediatrician suggested trying a gluten-free diet for 



two weeks.     Malcolm implemented the diet for two weeks and then stopped, believing 



that   Megan's   condition   was   not   related   to   a   gluten   allergy   but   rather   to   irregular 



movements   and   common   headaches.           There   were   some   communication   issues   and 



confusion between Malcolm and Mallory as to why Malcolm took Megan off the diet, 



but once Malcolm received a letter from the pediatrician clarifying that the diet should 



be resumed, Malcolm placed Megan back on the gluten-free diet.  The court found that 



the parents had an "honest disagreement" on this issue and did not find that one parent 



was better suited to meet Megan's needs based on this occurrence.                  The court did not 



clearly err in making this finding, and it was not an abuse of discretion for the court not 



to weigh this occurrence against Malcolm. 



        17      See AS 25.24.150(c)(2), quoted in footnote 4. 



                                                 -13-                                              6740 


----------------------- Page 14-----------------------

                 Mallory also asserts Malcolm does not meet the needs of the children as 



well   as   she   does   based   on   her   testimony   that   Megan   received   a   bruised   knee   from 



Malcolm falling on her while drunk.            There was no corroborating evidence to support 



Mallory's   allegation   that   Malcolm   caused   the   injury,   and   the   superior   court   did   not 



mention the incident in its order.        Based on the lack of corroborating evidence and the 



fact that it is the superior court's function to weigh the evidence and make credibility 



determinations, it was not clear error or an abuse of discretion for the superior court to 



disregard this allegation when assessing this factor. 



                 Mallory next points to her testimony that Malcolm had been drunk when 



his off-road truck rolled over while he was holding two-year-old Megan, crushing her 



finger and requiring her to have surgery.  Malcolm testified that he was not drunk when 



the accident occurred.        The superior court did not mention this incident in its order, 



either.  Again, it was not clear error or an abuse of discretion to omit making a finding 



on this allegation in the absence of corroborating evidence. 



                 Finally, Mallory points to the conflict between Brooke and Malcolm to 



argue that Malcolm does not meet the needs of the children as well as she does.  The 



focus   of   the   testimony   about   Brooke   was   on   her   emotional   and   social   needs.     The 



superior court found that "while each parent has not behaved as appropriately as they 



should   have   behaved,   they   nevertheless   are   equally   capable   of   meeting   [Brooke's] 



emotional   and   social   needs."      This   finding   was   not   clearly   erroneous.      The   court 



described Brooke, who had just turned 13, as "presenting the many challenges often 



presented by girls of that age."  This finding was supported by the custody investigator's 



report which described Brooke's conflicts with her father about chores, the use of her 



phone, how she dressed, and how much makeup she wore.                     Malcolm acknowledged at 



trial that he had made several parenting mistakes.              The court found that "much of the 



tension   that   exists   between   Brooke   and   her   father   is   due   to   [Malcolm's]   actions." 



                                                   -14-                                              6740
 


----------------------- Page 15-----------------------

However, the court went on to address Mallory's tendency to take Brooke's side in any 



conflict   with  Malcolm,    which   was  demonstrated    in  the  text  message  exchanges 



chronicled in Mallory's affidavit.   The court characterized some of Mallory's texts as 



"almost derisive" of Malcolm.      The court also found that Malcolm "intellectually, at 



least, . . . understands that changes need to be made" as indicated by his testimony of 



attending   counseling   with  Brooke,   while  Mallory   "by  contrast,  does  not  seem  to 



understand how she has contributed to the problem."   Based on the evidence, it was not 



clear error or an abuse of discretion for the court to consider each parent's shortcomings 



and determine that the parents are equally capable of meeting Brooke's emotional and 



social needs. 



              2.	    The superior court's consideration of Brooke's preference to 

                     live with Mallory 



              Mallory argues that the superior court did not properly weigh Brooke's 

desire to live full-time with Mallory.18  The court acknowledged that Brooke wanted to 



live with Mallory but stated that it "will not give much weight to Brooke's preference, 



however, because she is young, does not appear to be more mature than her age, and 



prefers her mother in substantial part because her mother has rather uncritically taken her 



side in her dispute with her father." 



              The court did not abuse its discretion by not giving Brooke's preference 



much weight.    Brooke had just turned 13 when the court made the findings.        We have 



held that "a teenager's preference can be a deciding factor because, while a young child's 



preferences are often unreliable, 'a relatively mature teenager's reasoned preference is 

not so lightly to be disregarded.' "19 However, the trial court found that Brooke was not 



       18	    See AS 25.24.150(c)(3), quoted in footnote 4. 



       19     Sheffield, 265 P.3d at 335 (quoting Yvonne S. v. Wesley H., 245 P.3d 430,
 



                                                                              (continued...)
 



                                            -15-                                       6740
 


----------------------- Page 16-----------------------

relatively mature when she expressed her preference and that she "prefer[red] her mother 



in substantial part because her mother has rather uncritically taken her side in her dispute 



with her father."       The superior court did not abuse its discretion when assessing this 



factor. 



                 3.	     The      superior      court's     assessment       that    continuity      favors 

                         continuing the present shared custody arrangement 



                 Mallory   argues   that   the   superior   court   improperly   determined   that   the 



continuity factor "favors continuing the present shared custody arrangement."                       Under 



AS 25.24.150(c)(5), the superior court, in determining the best interests of the child 



"shall   consider   .   .   .   the   length   of   time   the   child   has   lived   in   a   stable,   satisfactory 



environment   and   the   desirability   of   maintaining        continuity."     Mallory   asserts   that 



granting her primary custody would not interrupt the children's stability because "[t]he 



record reflects that mother has been the primary physical parent of all three children their 



entire lives."    However, Malcolm insists that            nothing less than " 'shared custody' had 



existed while the marriage was intact." 



                 The superior court did not clearly err or abuse its discretion by treating both 



parents   as   though   they   had   been   equally   involved   in   child   rearing,   and   the   record 

provides support for such a determination.20              Mallory further argues that the children 



would not experience a change in continuity or stability if she received primary physical 



custody because they would continue "in the same schools, with the same teachers, the 



same neighborhoods, the same group of friends."  However, "[t]he continuity factor has 



two     components:       maintaining       geographic      continuity    and   maximizing       relational 



        19(...continued) 



433 (Alaska 2011)). 



        20       For example, the custody investigation report stated, "[Father] has taught 



[the girls] how to hunt and fish as well as modeling a good work ethic." 



                                                   -16-	                                                6740 


----------------------- Page 17-----------------------

stability."21   Indeed,     "stability  is  often  a  function   of  parental   attitude   and  not   of 



geography."22     While their relationships with their friends and teachers might stay the 



same, granting Mallory primary physical custody could cause instability in Megan's and 



Brooke's   relationship   with   their   father,   and   with   their   brother   Jason,   who   is   in   the 



custody of Malcolm 70% of the time.  The court did not clearly err or abuse its discretion 



by finding that the continuity factor slightly favored the current custody arrangement. 



                4.	     The superior court's determination that Malcolm was less at 

                        fault   with   regard   to   fostering   a   relationship   with   the   other 

                        parent 



                When assessing the willingness and ability   of Malcolm and Mallory to 



foster a relationship between the other parent and the children, the superior court found 

that, on balance, Malcolm was "perhaps slightly less at fault with regard to this factor."23 



Mallory argues that the court improperly assessed this factor based on the evidence. 



                The court noted that Mallory "has been overly supportive" of Brooke and 



that Mallory was not fostering a good relationship between Brooke and Malcolm by 



always supporting Brooke.  The court also stated, "[Malcolm] seems to be more able to 



avoid negative comments about [Mallory]," although the court mentioned potentially 



disparaging comments Holly had made. 



                There is evidence that conflicts with the superior court's assessment.  In the 



custody investigator's report, Jason reported that neither parent talked much about the 



other, Brooke reported that Malcolm would "sometimes roll his eyes or make faces" if 



he heard Mallory mentioned in his house, and Megan reported that sometimes Malcolm 



        21      Blanton v. Yourkowski,  180 P.3d 948, 953 (Alaska 2008). 



        22      McQuade v. McQuade , 901 P.2d 421, 426 (Alaska 1995) (internal citation 



and alterations omitted). 



        23      See AS 25.24.150(c)(6), quoted in footnote 4. 



                                                 -17-	                                           6740
 


----------------------- Page 18-----------------------

said "he does not like Mother which makes Megan sad."  None of the children reported 



Mallory saying anything derogatory about Malcolm, although Mallory's text messages 



to Brooke could be characterized as derogatory. 



                But again, it is the function of the trial court to assess credibility and weigh 



the evidence.  The superior court did not consider improper factors or improperly weigh 

factors in making its determination.24  The court concluded its assessment of this factor 



by expressing its belief that the parties would both calm down after the completion of the 



case, again suggesting that this factor was not of primary significance in the court's 



overall   evaluation.     We   cannot   conclude   that   the   court   clearly   erred   or   abused   its 



discretion based on the conflicting evidence regarding this factor and other more relevant 



factors. 



                5.	     The superior court's assessment that alcohol does not appear to 

                        be a present concern 



                Mallory argues that the superior court did not properly assess the influence 

of alcohol in Malcolm's life and therefore this factor should have weighed in her favor.25 



The court found that "neither party has an alcohol abuse problem or that their use of 



alcohol impedes their ability to be parents at this time."  The court noted, "[A]lcohol has 



been an issue in the past, but it does not appear to be an issue at this time."            The record 



supports the court's findings. Malcolm testified that he had one or two drinks every day, 



but that he was not addicted to alcohol.          Tom Lytle stated that the amount of alcohol 



Malcolm   reported   he   consumed,   in   itself,   does   not   indicate   substance   abuse.    Dot 



Littleton characterized Mallory as occasionally abusing alcohol as part of her stress 



coping mechanism in the past but testified that Mallory was not an alcoholic.  Littleton 



        24      See Gratrix v. Gratrix, 652 P.2d 76, 80 (Alaska 1982). 



        25      See AS 25.24.150(c)(8), quoted in footnote 4. 



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----------------------- Page 19-----------------------

did not consider Mallory to have alcohol abuse issues.  Mallory asserts Malcolm still has 



issues with alcohol based on her allegation that Megan received a bruised knee from 



Malcolm falling on her while drunk.       As discussed above, there was no corroborating 



evidence to support Mallory's allegation, and the court disregarded it. 



               The court evaluated conflicting evidence and made its findings.  It did not 



clearly err or abuse its discretion in finding that "neither party has an alcohol abuse 



problem or that their use of alcohol impedes their ability to be parents at this time," and 



in neutrally weighing this factor. 



               6.	    The superior court's reliance on the child custody investigator's 

                      report 



               Mallory argues that it was improper for the court to rely on the custody 



investigator's report because it was limited in scope.  It may have been limited in scope, 



but it was based on the investigator's interviews of both parents and all three children. 



It also contained relevant, material information.     For example, the custody investigator 



wrote: 



               In a family where there is a divorce, children can easily learn 

               to   manipulate    their  parents   when    they  don't   like  the 

               punishment they are receiving. [Brooke] appears to be doing 

               this; running to Mother when she does not like what happens 

               at  Father's.   While    there  is  nothing  inappropriate   about 

               [Brooke] confiding in her mother, the problem arises when 

               there is a perceived alignment with the child by one parent 

               against the other parent.    This can serve to undermine the 

               other parent's authority and relationship with the child.  Like 

               all children, [Brooke] needs to learn to resolve conflict and 

               deal with the consequences of her actions. 



The court stated, "[A]s the Child Custody Investigator pointed out, . . . [Brooke] (and 



[Malcolm D.]) believes that her mother has taken her side in her dispute with her father. 



                                              -19-	                                        6740
 


----------------------- Page 20-----------------------

This has led [Brooke] to conclude that she can manipulate the situation to her benefit 



whenever she feels that her father has been mean to her." 



                Alaska Civil Rule 90.6(d)(2) clearly allows the trial judge to consider the 



custody investigator's report. It was not an abuse of discretion for the superior court to 



consider the report when making its determination on the motion to modify custody. 



        C.	     The   Superior   Court   Did   Not   Err   When   It   Determined   That   The 

                Presumption In AS 25.24.150(g) Does Not Apply In This Case. 



                The superior court concluded that the presumption in AS 25.24.150(g) did 



not   apply   because   Malcolm   and   Mallory   had   both   committed   two   acts   of   domestic 



violence during the marriage and neither party was more likely to perpetrate violence 



than the other.    Mallory does not explicitly challenge this conclusion.            However, "we 



consider pro se pleadings liberally in an effort to determine what legal claims have been 

raised."26  Mallory implicitly challenged this conclusion when challenging the court's 



findings on the number of domestic violence acts committed by each party. 



                The superior court found that during the marriage Malcolm and Mallory 



had each committed two acts of domestic violence and "they each have a history of 



        26      Toliver v. Alaska State Comm'n for Human Rights, 279 P.3d 619, 622 



(Alaska 2012). 



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----------------------- Page 21-----------------------

domestic        violence       as    that     term     is    defined      by     AS     25.24.150(h)."27 



Alaska Statute 25.24.150(i)(1) states: 



                 If   the  court    finds   that  both    parents    have    a  history    of 

                 perpetrating domestic violence under (g) of this section, the 

                 court shall . . . award sole legal and physical custody to the 

                 parent who is less likely to continue to perpetrate the violence 

                 and   require   that   the   custodial   parent   complete   a   treatment 

                 program[.] 



The   superior   court   determined   that   "neither   party   [is]   less   likely   than   the   other"   to 



perpetrate domestic violence.  The court correctly stated, "AS 25.24.150(i)(1) does not 



address the situation before the court, where neither party is less likely to perpetrate the 



violence than the other party."  The court concluded that under such circumstances, "the 



presumption set forth in AS 25.24.150(g) does not apply to either party and hence that 



the court is free to fashion a custody decree that meets the best interests of the children 



notwithstanding the requirements of AS 25.24.150(h)." 



        27       Alaska Statute 25.24.150(h) states: 



                 A   parent   has   a   history   of   perpetrating   domestic   violence 

                 under (g) of this section if the court finds that, during one 

                 incident   of    domestic     violence,   the   parent   caused    serious 

                 physical injury or the court finds that the parent has engaged 

                 in   more     than   one    incident    of   domestic     violence.    The 

                 presumption may be   overcome by a preponderance of the 

                 evidence      that   the   perpetrating      parent    has   successfully 

                 completed       an  intervention     program      for  batterers,    where 

                 reasonably      available,   that   the  parent    does   not   engage    in 

                 substance      abuse,   and   that   the  best   interests   of  the  child 

                 require     that  parent's    participation     as  a  custodial    parent 

                 because the other parent is absent, suffers from a diagnosed 

                 mental illness that affects parenting abilities, or engages in 

                 substance abuse that affects parenting abilities, or because of 

                 other circumstances that affect the best interests of the child. 



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----------------------- Page 22-----------------------

                We have not previously addressed the issue of how to make a custody 



determination in light of findings that both parents have histories of committing domestic 



violence and that neither parent is more likely to perpetuate violence than the other.  The 



Supreme      Court   of   North   Dakota    has   addressed    this  issue   thoughtfully    on   several 



occasions.    In one case that court held, "When the evidence shows an equal amount of 



domestic violence on the part of both   parents, the [rebuttable] presumption [against 



awarding custody to the perpetrator of the domestic violence] should apply to neither 

party."28   In another case, that court stated: 



                [I]f domestic violence has been committed by both parents, 

                the   trial   court   [must]   measure   the  amount   and     extent   of 

                domestic violence inflicted by both parents.            If . . . the trial 

                court    finds   that  the  amount     and   extent   of  the   violence 

                inflicted by one parent is roughly proportional to the violence 

                inflicted by the other parent, and both parents are otherwise 

                found   to   be   fit   parents,   the   presumption   against   awarding 

                custody to either perpetrating parent ceases to exist.  In such 

                a case, the trial court is not bound by any presumption, but 

                may consider the remaining customary best-interests factors 

                in making its custody decision.29 



We agree with the analysis and procedure outlined by the North Dakota Supreme Court. 



If the trial court finds that both parents have a history of perpetrating domestic violence 



        28      Huesers v. Huesers , 560 N.W.2d 219, 222 (N.D. 1997); see also Nancy Ver 



Steegh, Differentiating Types of Domestic Violence: Implications for Child Custody , 

65 LA . L. REV . 1379, 1425 (2005) ("Equally initiated violence is only likely to occur in 

cases involving Situational Couple Violence and, for the foregoing reasons, rebuttable 

presumptions against custody awards to perpetrators should not apply in those cases."). 

The superior court in this case expressly found the parties' mutual domestic violence was 

equal and "situational." 



        29      Krank   v.   Krank ,   529   N.W.2d   844,   850   (N.D.   1995)   (internal   citation 



omitted). 



                                                  -22-                                             6740
 


----------------------- Page 23-----------------------

as defined by AS 25.24.150(h), but also finds that neither parent is more likely than the 



other to continue to perpetrate the violence, the trial court may exercise its discretion and 



conclude that the rebuttable presumption set forth in AS 25.24.150(g) does not apply to 



either parent.    Thereafter, the trial court should consider the remaining best-interests 



factors in making its custody decision. 



                We emphasize that the trial court must take a qualitative approach when 



considering the nature and extent of the domestic violence committed by both parents 



rather than merely counting the number of domestic violence occurrences to determine 



whether the rebuttable presumption in AS 25.24.150(g) applies.                   For example, if one 



parent committed two heinous acts such as violent assaults upon the other parent, but the 



other parent committed two comparatively minor incidents, the trial court should take a 



holistic or qualitative approach when determining if the presumption applies rather than 



concluding the presumption does not apply merely because the parents committed the 



same   number   of   incidents.   In   this   example,   a   trial   court   likely   would   find   that   the 



presumption applies against the perpetrator of the more egregious domestic violence.  As 



always when exercising its fact-finding and discretionary responsibilities, the trial court 



will want to make sufficient findings and provide an explanation of its reasons for its 



decision.    The incidents of violence do not have to be exactly equal in intensity for the 



court to conclude that neither parent is more likely to perpetrate the violence. 



                Here, the superior court did a proper qualitative assessment: it did not find 



all of Mallory's allegations credible (e.g., the second choking incident), it found Malcolm 



had committed acts of domestic violence, and it found Mallory also committed two 



comparatively minor acts of domestic violence.   The court found the domestic violence 



was "situational."  The court also found   that domestic violence "is not likely to recur by 



either party" and that "domestic violence is not a factor that precludes the parties from 



sharing custody of the girls."        We see no clear error in these findings, and we conclude 



                                                  -23-                                             6740
 


----------------------- Page 24-----------------------

the court did not abuse its discretion in concluding the presumption did not apply under 



these circumstances. 



V.     CONCLUSION 



              We AFFIRM the judgment of the superior court in all respects. 



                                          -24-                                     6740
 

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