Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions

Touch N' Go
®, the DeskTop In-and-Out Board makes your office run smoother.


You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Kristina B. v. Edward B. (7/3/2014) sp-6922

Kristina B. v. Edward B. (7/3/2014) sp-6922

         Notice:  This opinion is subject to correction before publication in the PACIFIC REPORTER .  

         Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

         303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, e-mail  



KRISTINA B.,                                          )  

                                                      )        Supreme Court No. S-14865  

                           Appellant,                 )  

                                                      )        Superior Court No. 3AN-10-11620 CI  

                  v.                                  )  

                                                      )        O P I N I O N  

EDWARD B.,                                            )  

                                                      )       No. 6922 - July 3, 2014  

                           Appellee.                  )  


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


                  Judicial District, Anchorage, Andrew Guidi, Judge.  

                  Appearances: Karla F. Huntington, Law Office of Karla F.  

                  Huntington,  Anchorage,  for  Appellant.    Robin  A.  Taylor,  

                  Law Office of Robin Taylor, Anchorage, for Appellee.  

                  Before:  Fabe, Chief Justice, Winfree, Stowers, Maassen, and  


                  Bolger, Justices.   

                  MAASSEN, Justice.  



                  Ed and Kristina B.  had one son before they permanently separated.  After  


trial, at which the superior court heard evidence about domestic violence on Ed's part  

and  Kristina's  medical  and  substance-abuse  issues,  the  court  granted  sole  legal  and  

primary  physical  custody  of  the  child  to  Ed.    Kristina  appeals  many  of  the  court's  

         1        We use initials to protect the family's privacy.  

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

findings of fact and legal rulings.                   We remand to the superior court for reconsideration       

of  (1)  whether  Kristina's  child  support  obligation  should  be  reduced  to  reflect  the  

significant cost of her court-ordered urinalysis testing, and (2) whether the restrictive  


visitation schedule is justified once Kristina has demonstrated a history of sobriety.  On  

all other issues we affirm.   



                      Ed and Kristina began living together in 2006, married in 2007, and had  


a  son  in  2008.    They  separated  in  October  2010.    The  superior  court's  decision  on  


custody focused on three major issues affecting the parties' respective abilities to parent:  


Ed's  domestic  violence  against  Kristina,  Kristina's  substance  abuse  (involving  both  


alcohol and prescription narcotics), and Kristina's physical challenges related to Crohn's  

disease and its treatment.  

          A.         Ed's History Of Domestic Violence  


                     In earlier proceedings the superior court  found that Ed committed domestic  


violence against Kristina on several occasions and also that he verbally  abused her.  


Following the custody trial, the court found that these incidents constituted a history of  


domestic violence for purposes of the statutory presumption against awarding custody  


                                                   By the time of trial Ed had completed a state-approved  

to a parent with such a history. 

36-week batterers' intervention course and had also received individual therapy from Dr.  


Keith  Wiger,  a  counselor  specially  trained  in  domestic  violence  issues.                                        Based  on  


testimony from Ed's therapist that "Ed does not present a risk of harm to [his son]" and  


testimony from Ed's former fiancée that he was never physically violent or threatening  


in their relationship, the court found that Ed's violence with Kristina was "unlikely to  



          2          See AS 25.24.150(g).  

                                                              -2-                                                                  6922  

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

          B.        Kristina's Substance Abuse  

                    Kristina's  history  of  substance  abuse  dated  back  to  her  childhood;  she  


began abusing alcohol at age 11.  Witnesses at the custody trial described her continued  


abuse of substances to the point of incapacitation.  Along with alcohol and prescription  


narcotics, Kristina used marijuana, cocaine, and Valium.  Underlying her drug usage and  


physical health issues were mental health issues including "depression, anxiety, a suicide  

attempt (2007), and PTSD."  

                    Kristina admitted that she suffers from alcoholism.  She has  participated  


in a number of substance abuse programs but relapsed each time.  Her inability to quit  


drinking contributed to the loss of her teaching career, the custody of her first son, and  


two marriages, and it exacerbated her Crohn's disease, a serious gastrointestinal disorder  


that may be very painful.  She had three drunk-driving convictions (1991, 2004, and  


2007) and a negligent-driving conviction following a 2009 DUI arrest.    

                    Kristina also had a history of abusing the narcotic medications prescribed  

to treat her Crohn's disease.  The court-appointed custody investigator reported that  

Kristina  had  "multiple  medical  providers  treating  the  pain  associated  with  Crohn's  

Disease,  and other medical health problems, and overused or misused medications from  

these various providers."  Kristina denied misuse, but the superior court found that a tape  


recording  "clearly  captured  the  sounds  she  made  while  chopping  up  her  pills  and  

snorting them."  

                    Given Kristina's "alcohol, medications, unresolved Crohn's pain and the  

mental health history," the custody investigator recommended that she go to the Mayo  

Clinic for assessment and treatment.  Kristina did so for about six weeks in the summer  



                    Kristina testified that this incident resulted in a reduction of her visitation  


rights with an older son, from three Saturdays and one overnight per month to telephone  

contact only.   

                                                           -3-                                                              6922  

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

of 2011, but the custody investigator was unable to retrieve all the records of that visit             

for her report.  The investigator did receive partial records from the clinic diagnosing  


Kristina with "complex medical [issues], addiction, and a chronic pain syndrome" and  


recommending  a  "pain  rehabilitation  center  and  after  that[]  a  chemical  dependency  

treatment   program."      The   Mayo   Clinic   apparently   treated   Kristina's   narcotic  

dependencies and chronic pain syndrome, but she never completed the recommended  

dependency program, though she did receive outpatient therapy at Providence Behavioral  

Health upon her return to Alaska.  

                     The custody investigator also recommended that Kristina be ordered to  


undergo  urinalysis  testing  for  alcohol  every  72  hours,  and  the  court  adopted  that  

recommendation.  Upon her return from the Mayo Clinic, however, Kristina did not  

resume testing for four to six weeks, and she then had six gaps between tests, leaving  

open  the  possibility  that  she  was  drinking.    Uninterrupted  testing  resumed  in  late  



December 2011, but with positive readings on December 30, 2011, and January 3, 2012. 


                     Kristina appeared to be recovering at the time of trial.  In addition to her  


therapy  at Providence Behavioral Health, she was attending meetings of Alcoholics  


Anonymous.  She was working full-time in a professional office setting, had her own  

residence, and was developing a new social network.   


                     Still, the court had serious questions about Kristina's credibility in light of  


her demeanor and the inconsistencies between her testimony and that of other witnesses.  

In  particular,  the  court  found  her  untruthful  with  regard  to  the  critical  issue  of  her  


           4         Kristina argued that these two results were false positives, and her expert  

witness testified that the readings could have been caused by a  yeast infection. The court  

rejected this explanation.  

                                                               -4-                                                                   6922  

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

          C.        Kristina's Crohn's Disease  

                    Kristina was diagnosed with Crohn's disease before her marriage.  She had  


surgeries to treat symptoms of the disease in February and October 2009 and again in  


February 2011.  She was prescribed narcotics after each surgery, and there was evidence  


she abused these drugs.  But it was also undisputed that the pain medications, even if  

used only as prescribed, could cause her to experience debilitating side effects.  


                    In its custody decision, the superior court highlighted an incident in April  


2011.  One night Kristina suffered a bout of incontinence in the room where she slept  


with her son.  She was unable to clean up but returned to bed, leaving feces on the floor  


and her pain medication patches out by the bed.  A family friend and a hired custody  

supervisor were sleeping in adjacent rooms, but Kristina did not alert them or ask for  

help.  In the morning it took them over an hour to rouse her.  


                    On another occasion, the superior court found, Kristina accidentally set a  


fire in the garage.  The court found this may have been due to her failure to use her pain  

medications responsibly, with due regard for the safety of others.   


                    At trial Kristina reported that she was managing her Crohn's disease with  


non-narcotic medication after her treatment at the Mayo Clinic; the custody investigator  

testified that pharmacy records supported this assertion.  

          D.        Procedural History  

                    This litigation began with domestic violence petitions and interim custody  


hearings following the couple's separation in October 2010.  In January 2011 the court  


adopted the custody investigator's interim recommendations and limited both parties to  


supervised custody, giving Kristina  four  days  a week and Ed three.  The court also  

ordered Ed to attend a 36-week domestic violence intervention program for batterers and  


ordered  Kristina  to  submit  to  weekly  urinalysis.    The  court  ordered  psychological  

examinations of both parties as well, to help determine whether there were underlying  

                                                           -5-                                                           6922

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

issues that contributed to their behavior, but due to financial constraints neither party  


                   Both parties adjusted their living arrangements to meet the court's interim  


order for supervised visitation.  Ed remained in the family home and his parents moved  


in  to  serve  as  his  supervisors.            Kristina  moved  in  with  a  family  friend  and  hired  a  

personal care attendant to act as her supervisor.   


                   When Ed learned of Kristina's incident of incontinence and insensibility  


described above - and that as a result of it Kristina had been asked to leave the home  

of the family friend - he filed an emergency ex parte domestic violence petition and was  


granted interim legal and physical custody of their son.  The court's order was based on  


the testimony of Kristina's personal care attendant that Kristina, because of her "serious  

substance abuse problem, is unable to care for the child."  Kristina's visitation was  

reduced to one hour of supervised visitation and one hour of telephone or Skype visits  

per week.   

                   Ed went on to complete the batterers' intervention program, as well as  

psychological  counseling  for  domestic  violence.    The  court  consequently  lifted  the  


requirement of the interim custody order that his time with his son be supervised, and his  

parents moved out.  At the time of the custody trial five months later, the child appeared  

to be doing well in Ed's care.  


                   In  its  written  order  following  trial,  the  superior  court  considered  the  

statutory best interest factors, decided that Ed had overcome the statutory presumption  


against awarding custody to a parent with a history of domestic violence, and awarded  


Ed sole legal and primary physical custody of the child.  The court also approved Ed's  


planned move to Texas, finding that there were "legitimate reasons for the move, both  

economic  and  familial,"  and  that  it  was  not  intended  to  interfere  with  Kristina's  


                                                          -6-                                                          6922

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

                    Kristina filed this appeal, challenging:  (1) the superior court's finding that  


Ed had overcome the statutory presumption of AS 25.24.150(g) against awarding him  

custody; (2) the weight the court gave to Ed's domestic violence in assessing the best  


interest factors of AS 25.24.150(c); (3) the court's failure to apply AS 25.24.150(k) to  

hold that the conditions that made Kristina an unfit parent were attributable to Ed's  


domestic violence and therefore could not form the basis of the court's custody decision;  

(4) the court's finding that Kristina committed an act of domestic violence when she  

accidentally started the  fire in the garage; (5) the court's failure to account for the costs  


of Kristina's medication and her court-ordered urinalysis testing in its calculation of her  


child support obligation; (6) the court's failure to allocate a part of the visitation costs to  


Ed; (7) the restricted visitation schedule that follows Kristina's year of demonstrated  

sobriety; and (8) the court's approval of Ed's planned move to Texas.  



                                                                                                                      We will  

                    "Trial courts have broad discretion in determining child custody." 


                                                                                         Factual findings are clearly  

set aside factual findings only if they are clearly erroneous. 

erroneous  when,  based  on  the  entire  record,  we  are  left  "with  a  definite  and  firm  


conviction . . . that a mistake has been made, even though there may be evidence to  



support the finding."            We afford particular deference to factual findings based primarily  

          5         Ebertz v. Ebertz , 113 P.3d 643, 646 (Alaska 2005) (citing                         Smith v. Weekley,  

73 P.3d 1219, 1222 (Alaska 2003)).  

          6         Id.  

          7         Id. (quoting Jenkins v. Handel, 10 P.3d 586, 588 (Alaska 2000)) (internal  

quotation marks omitted).  

                                                            -7-                                                              6922  

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

on  oral  testimony,  because  the  trial  court  is  better  suited  to  judge  the  credibility  of  


witnesses and weigh conflicting evidence.   

                    We will find that a trial court abused its discretion in a custody case if it  


"consider[s]  improper  factors  in  making  its  custody  determination,  fails  to  consider  


statutorily mandated factors, or assign[s] disproportionate weight to particular factors  

while ignoring others."9  



          A.	        The Trial Court Did Not Err In Determining That Ed Overcame The  

                    Domestic Violence Presumption Of AS 25.24.150(g).  

                     1.	       The presumption was in effect.  


                    Alaska Statute 25.24.150(g) creates a rebuttable presumption that a parent  

with a history of domestic violence may not  be awarded legal or physical custody.10  The  

statutory term "history of domestic violence" is defined in the next subsection, .150(h),  


to mean either that (1) "during one incident of domestic violence, the parent caused  


serious physical injury," or (2) "the parent has engaged in more than one incident of  

domestic violence."   


                    The parties agree that the presumption was in effect against Ed.  In the  


superior  court's  first  interim  order  -  in  which  it  held  that  both  parents  needed  


supervised visitation - the court found that Ed had once dragged Kristina outdoors by  

          8         Limeres v. Limeres , 320 P.3d 291, 296 (Alaska 2014) (citations omitted);   

Nancy M. v. John M. , 308 P.3d 1130, 1133 (Alaska 2013) (citing Misyura v. Misyura ,  

242 P.3d 1037, 1039 (Alaska 2010)).  



                    Ebertz ,  113  P.3d  at  646  (quoting  Barrett  v.  Alguire ,  35  P.3d  1,  5  n.5  

(Alaska 2001)) (alterations in original) (internal quotation marks omitted).  



                    "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(g).  

                                                             -8-	                                                               6922  

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


the hair in sub-zero temperatures, had beaten her with a belt and shut her up in a small  


room, and in a separate incident had slapped her face.   Under the statute, these incidents  

unquestionably constitute a history of domestic violence.  

                    2.	      The superior court did not clearly err in finding that Ed had  


                             successfully completed a batterers' program and that he did not  

                             engage in substance abuse.  


                    Overcoming the rebuttable presumption of AS 25.24.150(g) is addressed  

in subsection (h):   


                    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.  


The evidence supports the superior court's conclusion that Ed rebutted the presumption.  


                    First, Ed completed a 36-week family violence intervention program at  


Alaska  Family  Services.    While  that  alone  was  sufficient  to  satisfy  the  statutory  

requirement  that  he  complete  "an  intervention  program  for  batterers,"  the  evidence  

showed that he also  completed a four-hour parent education class at Alaska Family  


Services  and  received  one-on-one  counseling  from  a  psychologist  with  expertise  in  


domestic violence issues.                

          11        See  Stephanie  F.  v.  George  C.,   270  P.3d  737,   753-54  (Alaska  2012)  

(finding  that  12  weeks  of  one-on-one  therapy  might  be  adequate  to  overcome  the  

presumption  even  where  the  parent  failed  to  complete  a  formal  batterers'  program,  

especially  in  light  of  evidence  that  the  parent's  acts  of  domestic  violence  were  


"situational" and "unlikely to reoccur").   

                                                           -9-	                                                            6922  

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

                      Kristina argues, however, that Ed did not meet his burden of proving that  

he successfully  completed the program.  She argues that his certificate of completion  


proves only that he attended the classes, not that he absorbed what he was taught.  She  


also asserts that the legislature must have intended there be proof in each individual case  


that the program succeeded before the presumption against an award of custody can be  



                      But Kristina never questioned the program's effectiveness during trial, and  



we will not weigh evidence in the first instance.                                 In any event, her arguments - based  

primarily on Ed's credibility - are not persuasive.  As the superior court found, there  


was other evidence besides the certificate and Ed's testimony to support the conclusion  


that his completion of the program was successful.  His therapist Dr. Wiger, who was  


qualified as an expert in domestic violence issues, testified about Ed's internalization of  


the program's lessons.  The custody investigator, too, independently determined that Ed  


had successfully completed the program, based both on Dr. Wiger's records and her own  


knowledge  of  the  program's  curriculum.    Both  Dr.  Wiger  and  Ed's  former  fiancée  


testified that Ed's violence toward Kristina was not reflected in other aspects of his life  


and was therefore unlikely to be repeated.  The superior court found Ed credible on this  


issue, and it was in a better position than we are to weigh the evidence and assess the  


credibility of witnesses.                   

           12         Sagers v. Sackinger, 318 P.3d 860, 866 (Alaska 2014); Ebertz  v. Ebertz,  

113 P.3d 643, 646 (Alaska 2005).  Here, the superior court observed that "no successful   

challenge  was  made  to  the  evidence  that  Ed  studiously   attended  and  completed  the  


           13         See, e.g ., Stephanie F., 270 P.3d at 749 ("[T]he trial court was in a better  


position to assess the credibility of the witnesses, the overall persuasive force of the  

evidence, and the persuasiveness of the expert testimony.").  

                                                                  -10-                                                                      6922  

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

                     Overcoming the presumption also requires a finding that the "perpetrating        

                                                                         14  The superior court found that Ed did  

parent . . . does not engage in substance abuse."                            

not have a substance-abuse problem, and Kristina does not challenge this finding on  


                     3.	       The superior court did not clearly err in finding that the child's  


                               best interests require Ed's participation as a custodial parent.  

                     In addition to the successful completion of a batterers' intervention program  

and  the absence of any substance-abuse problem, a parent seeking to overcome  the  


presumption of AS 25.24.150(g) must show that it is in the child's best interests that the  


parent have custody:  the statute's listed justifications are that "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."                     On this issue the superior court found:  

                     Kristina is a chronic, long-term alcoholic and prescription  

                     drug abuser who has been sober only about three months (as  


                     of the date of trial). . . . She has had four to five previous  


                    unsuccessful  attempts  at  substance  abuse  treatment  and  

                    recovery.  Based on the severity and length of her addiction,  


                     as well as the very concerning evidence that she has not been  

                    truthful about her sobriety, the court must find that Kristina  

                    meets the statutory definition  of a parent who "engages in  


                     substance abuse that affects her parenting abilities."  

                     Kristina argues that this finding was clearly erroneous; she contends that  

she was sober longer than the three months the superior court credited  to her.   She  


specifically disputes the accuracy of two positive urinalysis results in the months leading  


up to trial.  She correctly points out that the superior court erred when it attributed to her  

          14        AS 25.24.150(h).  

          15	       Id.  

                                                             -11-	                                                               6922  

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


expert witness the theory that "possible use of hand sanitizer wipes may account for the  

above-normal biomarker readings," a theory the superior court rejected.16  But the court's  


erroneous  attribution  of  this  theory  to  Kristina's  expert  does  not  affect  its  ultimate  


conclusion - that there was no credible, innocent explanation for the positive urinalysis  


results.  Taking into account the positive readings, the court found that Kristina's period  


of sobriety had commenced no earlier than February 2012, only a few months before  


trial.  On that ground, and considering "the severity and length of her addiction" and "the  

very concerning evidence that she has not been truthful about her sobriety," the court  


found that Kristina was "engaging" in substance abuse for purposes of section .150(h).  

This finding was not clearly erroneous.  


                      The  superior  court  also  found  that  even  if  Kristina's  recent  sobriety  


precluded a finding that she was currently "engage[d] in substance abuse," her history  

of drug addiction and alcoholism nonetheless constituted "other circumstances" affecting  

the best interests of her son for purposes of subsection .150(h), thus still "requir[ing]  


Ed's participation as a custodial parent for [their son]."  This finding also has substantial  

support in the record.  


                      Finally, Kristina argues that her substance abuse history is not so disabling  

as to "require" Ed's participation as a custodial parent.   But the superior court is in a  

better position to make that judgment, since it observed the parties and witnesses over  


                                                                                                                            Given  the  

the  course  of  the  litigation  and  can  better  assess  the  circumstances. 


seriousness  of  Kristina's  past  substance  abuse  and  her  uncertain  future,  there  was  

           16         Although Kristina's expert, Dr. Alfred Staubus, made reference to tests   

showing that health care workers who use a lot of hand sanitizer may absorb enough   

alcohol through the skin to generate biomarkers, he did not rely on that theory to explain                   

Kristina's positive results; rather, he cited the metabolic effects of a fungal infection.   

           17         Stephanie F., 270 P.3d at 749.  

                                                                 -12-                                                                    6922  

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


substantial support for the superior court's finding that Ed's participation as a custodial  

parent  is  necessary  to  the  child's  best  interests.    The  superior  court  is  entitled  to  

substantial  deference  when  it  determines  that  the  statutory  presumption  has  been  

overcome,18 and its finding that it was overcome in this case is not clearly erroneous.  

           B.	        The Superior Court Adequately Weighed Ed's History Of Domestic  

                      Violence In Considering The Child's Best Interests.  

                      Separately from the presumption addressed in AS 25.24.150(g) and (h),  


AS 25.24.150(c) requires that a  superior court base its custody decision on the best  

interests of the child and lists the factors the court should consider in making a best  

interests determination.  "Though a trial court cannot assign disproportionate weight to  


particular factors while ignoring others, it has considerable discretion in determining the  


importance of each statutory factor in the context of a specific case and is not required  

to weigh the factors equally."19  

                      Kristina  challenges  the  court's  analysis  of  the  seventh  factor  -  "any  


evidence of domestic violence, child abuse, or child neglect in the proposed custodial  

household or a history of violence between the parents"20 - arguing that the court gave  


too little weight to Ed's history of domestic violence.  The court addressed Ed's domestic  

violence in the context of the statutory presumption of subsection .150(g), discussed  


above; the court made credibility findings and assessed how the domestic violence could  

affect the child's needs.  The court clearly considered the issue seriously.  Kristina's  

argument that the court gave the factor too little weight is really an argument that the  

           18	       Id.  

           19         Williams v. Barbee, 243 P.3d 995, 1005 (Alaska 2010) (quoting  Barlow v.  

Thompson, 221 P.3d 998, 1005 (Alaska 2009)) (alterations and internal quotation marks   


           20         AS 25.24.150(c)(7).  

                                                                 -13-                                                                   6922  

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

court clearly erred in finding (1) that Ed was credible whereas Kristina was not; (2) that   

the violence was "unlikely to recur"; and (3) that it was in the child's best interests that   

Ed participate as a custodial parent.   

                       But  these  factual  findings  are  not  clearly  erroneous.    As  we  recently  

observed in a similar case:  


                        [T]he  trial  court  was  in  a  better  position  to  assess  the  


                       credibility of the witnesses, the overall persuasive force of the  

                       evidence, and the persuasiveness of the expert testimony. . . .  

                        [The] difficult and important assessment of [gauging the risk  



                       of future violence] is one best made by the trial court.  


The same is true here.  Witnesses at trial included Kristina's ex-husband, five long-time  


friends and family members, her personal care attendant, her AA sponsor, her employer,  


and four new friends from AA.  Supporting Ed's rehabilitation was testimony from his  


ex-fiancée, his therapist, and several experts.  The superior court explained in detail the  

reasons for its credibility findings, and its findings support its ultimate decision.  The  


court did not abuse its discretion when it weighed the domestic violence factor in the best  

interests analysis.  


            C.         The Superior Court Did Not Err By Failing To Apply AS 25.24.150(k).  

                       Kristina argues that once the superior court concluded that her substance  

abuse rendered her incapable of parenting, it was required to address AS 25.24.150(k),  


which states that "[t]he fact that an abused parent suffers from the effects of the abuse  


does not constitute a basis for denying custody to the abused parent unless the court finds  


that the effects of the domestic violence are so severe that they render the parent unable  


to safely parent the child."  Kristina argues that her substance abuse and post-traumatic  


stress disorder (PTSD) are effects of Ed's domestic violence, and the superior court erred  

by relying on these conditions to deny her custody of the child.   

            21         Stephanie F., 270 P.3d at 749.  

                                                                      -14-                                                                         6922  

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


                    The superior court did not err.  First, Kristina failed to demonstrate that her  

substance abuse was the result of Ed's domestic violence.  To the contrary, the evidence  


showed that her history of abuse had begun over 25 years earlier, long before she met Ed  

in 2006.  


                    Kristina makes the same argument with regard to her PTSD, relying on the  


expert testimony of a substance abuse counselor who diagnosed her with PTSD caused  

by domestic violence, with Ed as the perpetrator.  But the superior court did not cite  


Kristina's PTSD as "a basis for denying custody" to her; its primary concerns with her  

parenting involved her substance abuse and the physical challenges posed by her Crohn's  


disease.        In the superior court's view, these were the factors that caused her to neglect  


and recklessly endanger the child, making her an unsafe parent.  Since the superior court  


did not base its custody award on Kristina's PTSD, AS 25.24.150(k) is irrelevant to that  



                    D.	        The Superior Court Did Not Err In Determining That Kristina  

                               Committed An Act Of Domestic Violence.  


                    The superior court found that Kristina had committed an act of domestic  


violence when she accidentally set a pillow on fire in the garage of the friend's house  


where she was staying after her separation from Ed; it declined, however, to find that  


Kristina had a history of domestic violence for purposes of the statutory presumption  



against custody.             Kristina disputes that she caused the fire and that the facts as alleged  

could constitute domestic violence.  

          22        The superior court cited Kristina's "PTSD-like symptoms" when discussing  

each parent's willingness to foster the child's relationship with the other parent, a factor  


it found to favor neither parent. The court also referenced Kristina's PTSD as one of the  


"risk factors for relapse" when it set out the conditions for her move from supervised to  


unsupervised visitation.   

          23        See AS 25.24.150(g).  

                                                             -15-                                                               6922  

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

                       The  superior  court's  findings  of  fact  were  based  on  the  testimony  of  


                                                                The attendant testified that Kristina had been in the          

Kristina's personal care attendant. 

garage about 30 minutes before the fire was discovered; that Kristina "had fallen asleep     

before, smoking a cigarette in the garage, quite a few times"; and that no one else was  


home when the fire started except herself and the child.  Based on this testimony and  


Kristina's failure to refute it, the court found that Kristina had started the fire.  In light  

of  the  evidence,  Kristina's  bare  argument  that  "other  people  could  have  caused  the  

situation" is not sufficient to show that the court clearly erred.  


                       The  superior  court  considered  whether  these  facts  constituted  reckless  


endangerment, a crime that is committed when one "recklessly engages in conduct which  

                                                                                                                        25  The court found  

creates a substantial risk of serious physical injury to another person." 

that Kristina was "frequently dazed" during this period of her life, possibly due to her  


pain medications; that even if using the medications properly "she still was responsible  


for taking her medication in a safe manner, which includes a duty to avoid engaging in  


activities that would be hazardous if performed while impaired"; and that "leaving a lit  


cigarette in contact with flammable material" was one such hazardous activity.  The court  


therefore found she had acted recklessly and had endangered her son's safety.  Because  


recklessly endangering a family member constitutes an act of domestic violence,26 the  

court found that Kristina had committed an act of domestic violence against her son.  

                       Kristina argues that there was no evidence she was under the influence of  


narcotics when the fire started.  But the court found only that "the most likely cause of  


Kristina's  frequently  dazed  condition  during  this  time  period  was  her  abuse  of  


            24         The attendant was hired to supervise Kristina's visits with her son.  

            25         AS 11.41.250.  

            26          Williams  v.  State,  151  P.3d  460,  467  (Alaska  App.  2006)  (citing  AS  

 18.66.990(3); AS 11.41.520).  

                                                                      -16-                                                                          6922  

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

prescription narcotics."  And while the court noted that "leaving a lit cigarette in contact  

with flammable material" is a hazardous activity "if performed while impaired," the  

activity is equally hazardous - and equally reckless - if the actor is not impaired.   


                    Kristina also argues that in finding her conduct reckless, the superior court  


ignored the fact that she had hired the personal care attendant to act as a supervisor and  


thus had a "back-up plan to keep [the child] safe that day."  But the fact that the superior  

court  had  correctly  anticipated  Kristina's  recklessness  when  ordering  supervised  

visitation does not make the conduct less reckless.  Indeed, the presence of the attendant  

meant that there were two people exposed to the risk of harm, not just one.  On these  

facts, we hold that the court did not abuse its discretion in deciding that Kristina had  


committed an act of domestic violence.                           

                    Finally, we reject Kristina's argument that the finding of domestic violence  


violated her due process rights.  Kristina argues that she had no opportunity to refute the  


testimony  of  the  personal  care  attendant  by  cross-examining  her  on  the  issue  or  


presenting her own contrary evidence, because she did not anticipate that the testimony  


would be used to support a finding that she committed an act of domestic violence.  But  


this argument is not supported by the record.   Kristina had the opportunity to cross- 


examine the attendant about the fire incident, which was clearly relevant to her parenting  


capabilities, but she chose to focus on other issues.  She did not ask for more time to  


prepare to meet the evidence, nor does she explain what benefit she would have gained  

from more time or more notice.  Once the evidence of domestic violence came in, the  



                    Ebertz v. Ebertz , 113 P.3d 643, 646 (Alaska 2005) (observing that in the  


custody context, factual findings are reviewed for clear error and the application of facts  

to law is reviewed for abuse of discretion).  

                                                             -17-                                                              6922  

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


superior court was obliged to consider it.                        Since the facts in this case support the court's  

finding, we see no error.   

          E.	        On Remand The Superior Court Should Account For The Cost Of  

                     Court-Ordered   Urinalysis   Testing   In   Kristina's   Child   Support  


                     Kristina  challenges  the  superior  court's  award  of  child  support,  which  

requires  that  she  pay  $537.58  per  month  pursuant  to  the  formula  of  Alaska  Civil  

Rule 90.3.  "The superior court presumptively does not abuse its discretion when it  


                                                                              Kristina argues that the superior court  

awards child support based on Civil Rule 90.3." 


should have deviated from Rule 90.3 in her case, reducing her monthly child support  

obligation because of her medication costs and the cost of court-ordered urinalysis.  


                     A trial court may deviate from the Rule 90.3 formula if the party seeking  


the deviation proves by clear and convincing evidence that manifest injustice will result  



if the support award is not varied.                       Such a showing is considered "good cause" for  



variance.          In order to show good cause, therefore, Kristina had the burden to show that  

her "health or other extraordinary expenses" made the Rule 90.3 formula unjust.32  


                     Kristina asserts that she has a net income of about $2,600 per month, that  

her monthly out-of-pocket cost for Crohn's disease medication is $1,800, and that her  

          28         AS 25.24.150(c)(7) ("In determining the best interests of the child the court  

shall consider . . . any evidence of domestic violence . . . in the proposed custodial  

household . . .").  

          29	        Coghill v. Coghill, 836 P.2d 921, 924 (Alaska 1992) (citing Alaska R. Civ.   

P. 90.3, Commentary VI ("[T]he rule presumes that support calculated under 90.3(a) or   

(b) does not result in manifest injustice.")).  

          30         Alaska R. Civ. P. 90.3(c)(1).  

          31         Id.  

          32         See Alaska R. Civ. P. 90.3, Commentary VI (B).  

                                                              -18-                                                                 6922  

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


court-ordered  urinalysis  testing  costs  about  $1,440.    She  points  out  that  these  costs  


together surpass her income and contends that she is left with nothing for living expenses  

or gas money for visits with her son.  She claims that this burden is unjust.  


                     There is support in the record for the court's failure to vary the Rule 90.3  


formula because of the cost of Kristina's medication. She submitted none of her medical  

bills as evidence; Ed attested by affidavit that most of the cost of her medication had  


been covered by insurance during their marriage; and Kristina confirmed that she had  

health insurance available through her employer.  We conclude that the superior court  


did not clearly err when it rejected a variance based on the cost of Kristina's medication.  


                    But the court-ordered urinalysis testing is another matter.  Kristina testified  


that the testing, which she was required to undergo every 72 hours, costs $144 each time,  


for a total monthly cost of approximately $1,440.  There appears to be no other evidence  


in the record about the cost, and Ed's only argument against a variance based on the cost  



is that the testing requirement is only temporary.                           But the cost is significant, it is court- 

ordered, it is unlikely to be covered by insurance, and it may well impact Kristina's  


ability to visit her son.  The superior court should revisit this issue on remand and make  

a specific finding as to whether the cost of the mandatory urinalysis testing justifies a  

deviation from the Rule 90.3 calculation.  


          F.	        The Court Did Not Err When It Refused To Order Ed To Bear Some  

                     Of The Visitation Costs.   

                    Kristina also argues that the court should have required Ed to share the  


transportation costs for her visits with her son.  Rule 90.3(g) requires the trial court to  

          33        As  Ed  acknowledges,  whether  a  cost  is  permanent  or  temporary  is  a  


relevant consideration when a parent seeks to modify child support based on a "material  


change in circumstances," see Patch v. Patch , 760 P.2d 526, 530 (Alaska 1988) ("[A]  


trial court should be reluctant to modify child support obligations when the obligor's loss  


of income appears only temporary."); and this case presents an initial calculation of child  

support, not a modification.   

                                                             -19-	                                                               6922  

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

"allocate reasonable travel expenses which are necessary to exercise visitation between  


the parties as may be just and proper for them to contribute."   We review the court's  


allocation of visitation expenses for an abuse of discretion.                                  

                    The  superior  court  did  not  explain  its  failure  to  split  the  costs,  but  the  


limited evidence on the issue showed that Kristina drove from Anchorage to Wasilla to  


pick up the child for her bimonthly visits with him and that she missed a number of visits  


without prior notice, causing Ed to incur the cost and inconvenience of driving the child  


to  the  pickup  point  at  a  supermarket  in  Wasilla.    There  was  evidence  that  Kristina  

exaggerated the cost of her travel and that the true monthly cost of the visits was less  


than $40.  We cannot find on this record that the superior court abused its discretion on  


this issue.           

          G.	       On Remand The Superior Court Should Reconsider The Limits On  


                    Kristina's Visitation Following A Year Of Sobriety.  

                    The superior court ordered that Kristina's visitation will increase as she  


demonstrates that she is successfully addressing her problems with substance abuse.  


According  to  the  order,  "[a]fter  Kristina  has  had  six  months  of  documented  and  

uninterrupted total sobriety, and providing she has continued in her current treatment to  


address her management of Crohn's pain and her PTSD, which are both risk factors for  


relapse,  the  visitation  schedule  shall  change."    Kristina  is  then  allowed  mostly  


unsupervised visits, and she can transition into entirely unsupervised alternate weekend  

          34        C.R.B.  v.  C.C.,  959  P.2d  375,  384  (Alaska  1998),  overruled  on  other  

grounds by Evans v. McTaggart , 88 P.3d 1078, 1085 (Alaska 2004).  


          35        Kristina cursorily challenges the superior court's failure to "address the  


question of how to divide airfare to Texas, if/when Ed  actually moves."  But as Ed  

responded to this argument in the trial court, the move was then "extremely speculative,"  


and the issue of shared costs is better addressed in the context of the parties' current  

finances if and when the move occurs.   

                                                             -20-	                                                             6922  

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

visits "after one full year of total, uninterrupted and documented sobriety and compliance  


with her therapy programs."   This arrangement will constitute "[t]he final transition."  


Kristina argues that this unequal visitation schedule, limiting her to alternate weekends  


even after she has demonstrated long-term sobriety, is against public policy and should  

be reversed.   

                    The      superior        court      essentially        adopted        the     custody        arrangement  

recommended by the custody investigator.  Notably, the investigator predicted that "if  

Kristina is 100% sober and is not incapacitated due to a flare-up in her Crohn's Disease  


or treatment . . . she is likely able to meet [her son's] basic needs."  The court found that  


Kristina was "not capable  at this time  of meeting [the child's] needs because of her  


history of substance abuse."  (Emphasis added.)  The court did not find that Kristina  


would never be capable of meeting her child's basic needs; we are therefore troubled by  


the prospect that the "final transition" to fully unsupervised visitation, after a year of  

                                                                                                                   36  Custody  

proven sobriety, still leaves Kristina with visits of only every other weekend. 

orders involving equally capable parents typically allow for extended summer visits and  



shared holidays.             We do not mean to imply that an unequal schedule of custody and  

visitation may not be warranted in this case; but the court's order does not explain why  


such a schedule will still be justified once Kristina's primary parenting issue - her  

substance  abuse  -   has   been  resolved.    We  remand  for  the  superior  court's  further  


consideration of the issue.  The court may revise the visitation schedule that is to follow  

          36        The superior court did, on reconsideration, allow Kristina to have a half-                     

day's visitation on Thanksgiving Day.  

          37        See,  e.g., McLane  v.  Paul ,  189  P.3d  1039,  1040,  1042  (Alaska  2008);  

Morino v. Swayman , 970 P.2d 426, 427 (Alaska 1999); see also AS 25.20.060 ("An  


award of shared custody shall assure that the child has frequent and continuing contact  


with each parent to the maximum extent possible."); Elliott v. Settje , 27 P.3d 317, 323-24  


(Alaska 2001) (discussing shared custody between equally capable parents).  

                                                             -21-                                                               6922  

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


Kristina's  "final  transition"  to  fully  unsupervised  visitation;  it  may  give  a  fuller  


explanation of why Kristina's visitation should remain unusually restricted; or it may  


hold the issue in abeyance until the precondition of demonstrated sobriety has been met,  

and then set the visitation schedule that is most appropriate under the circumstances.  


          H.	       The Court Did Not Clearly Err In Finding That Ed's Move To Texas  

                    Was Permissibly Motivated.  


                    At the time of trial Ed was contemplating a move to Texas to be closer to  


his parents.  The superior court approved of this plan, finding that Ed had "legitimate  

reasons for the move, both economic and familial."  Kristina challenges this finding,  


arguing that Ed's behavior shows that he is motivated by an intent to hurt Kristina and  


"damage the mother-son relationship."                         

                    Based on Ed's testimony the court expressly found that his move to Texas  


was prompted by legitimate reasons - primarily his desire to live closer to his parents,  

who  had  bonded  with  their  grandson  when  they  came  to  Alaska  to  supervise  Ed's  

custody.    The  court  found  "no  evidence  to  indicate  [Ed's]  motivation  is  to  thwart  

Kristina's contact with [the child]," and on appeal Kristina points only to evidence that  

Ed  had  hurt  her  in  the  past,  not  any  evidence  specifically  related  to  his  reasons  for  

moving.    The  superior  court's  finding  of  motivation  depends  almost  entirely  on  its  



                    A parent's "proposed move is legitimate if it was not primarily motivated  

by a desire to make visitation . . . more difficult."  Moeller-Prokosch v. Prokosch , 27  

P.3d 314, 316 (Alaska 2002) (quoting House v. House , 779 P.2d 1204, 1208 (Alaska  


1989)) (internal quotation marks omitted).  If not improperly motivated, a parent's move  


out of state will not require a modification of custody as long as the move is in the best  

interests of the child.  Id. at 316-17.  

                                                           -22-	                                                            6922  

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


assessment of Ed's credibility, and we therefore give it particular deference.                            Kristina  

has not persuaded us that the finding is clearly erroneous.   


                  We REMAND to the superior court for reconsideration of two issues, as  


explained above: (1) whether the costs of court-ordered urinalysis testing should reduce  

Kristina's child support obligation, and (2) whether a more liberal visitation schedule  

should  follow  Kristina's  period  of  demonstrated  sobriety.    On  all  other  issues,  we  

AFFIRM the decision of the superior court.  We retain jurisdiction.  

         39       Limeres v. Limeres , 320 P.3d 291, 296 (Alaska 2014) ("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 credibility of witnesses and  

weighs conflicting evidence.' " (quoting Sheffield v. Sheffield, 265 P.3d 332, 335 (Alaska  


                                                      -23-                                                      6922  

Case Law
Statutes, Regs & Rules

IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights