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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Sarah D. v. John D. (6/12/2015) sp-7015

Sarah D. v. John D. (6/12/2015) sp-7015

         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  



SARAH D.,                                                )  

                                                         )     Supreme Court No. S-15288  

                           Appellant,                    )  

                                                         )     Superior Court No. 3AN-12-11124 CI  

         v.	                                             )  

                                                         )     O P I N I O N  

JOHN D.,                                                 )  

                                                         )    No. 7015 - June 12, 2015  

                           Appellee.	                    )


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

                  Judicial District, Anchorage, Patrick J. McKay, Judge.  

                  Appearances:            Phyllis     A.    Shepherd,       Anchorage,        for  

                  Appellant.  Notice of nonparticipation filed by Kenneth M.  

                  Wasche, Kenneth M. Wasche, P.C., Anchorage, for Appellee.  

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


                  Bolger, Justices.  

                  WINFREE, Justice.  


                  Sarah D. and John D. separated shortly after their daughter turned three.  

Each  claimed that the other was abusive and obtained a short-term domestic violence  


protective order after they separated; they later stipulated to a mutual no-contact order  


but violated it by continuing a sporadic romantic relationship.  They sharply contested  


numerous domestic violence allegations and generally cast each other in a bad light  

throughout their divorce proceedings.  

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


                    Sarah requested interim attorney's fees. After the superior court denied her  


request, Sarah consented to her lawyer's withdrawal.  Sarah and John then agreed to a  


property settlement.  Before litigating custody Sarah again requested interim attorney's  


fees and twice filed continuance motions requesting time to obtain counsel.  Her motions  


were denied, and she appeared pro se throughout a four-day custody trial.  John's parents  


helped pay for his lawyer, and he was represented at all times.  Over Sarah's objections,  

John's father was allowed to intervene as a party for visitation purposes.  

                    Finding John and Sarah's relationship dysfunctional, Sarah manipulative  


and guilty of one incident of domestic violence, and neither party credible, the court  

awarded  shared  physical  and  sole  legal  custody  to  John  and  gave  John's  father  


unspecified visitation during John's custodial time.  Sarah appeals the court's denials of  

her requests for an interim fee award, trial continuances,  and to compel a witness's  

attendance  at  trial.    She  also  appeals  the  court's  orders  granting  the  grandfather  


intervention  and  visitation  and  the  court's  domestic  violence  finding  and  custody  


decision.  We vacate the order granting the grandfather visitation and otherwise affirm  


all but the custody decision, remanding for more detailed findings and conclusions on  

domestic violence issues.  



                    Sarah and John married in 2009 shortly after their daughter's birth.  Their  

daughter was three years old when they separated in November 2012.  At separation  


Sarah and John each obtained an ex parte short-term domestic violence order against the  


other, and Sarah filed for divorce.  John was represented by counsel throughout the  


proceedings, and Sarah had counsel until she consented to his withdrawal in mid-March  



                    In December 2012 Sarah and John each petitioned for a long-term domestic  


violence protective order against the other, but then voluntarily withdrew their petitions  

                                                               -2-                                                         7015

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

and stipulated to a mutual no-contact order permitting them to text or email each other  

only about their daughter.  Neither John nor Sarah honored the no-contact order; indeed,  


until a month before the custody trial began in late May 2013 they routinely violated the  

order to have consensual sex.  


                    At the end of interim hearings in mid-January 2013 the parties agreed to a  

shared physical custody schedule.  The superior court ordered John to continue making  


mortgage payments on the marital home, where Sarah and the daughter remained, and  

John moved in with his parents.  The parties entered into a property settlement agreement  


in late March, and the court confirmed it a month later.  John was to keep the marital  


home, but Sarah was to live there until May 31.   Therefore, for the bulk of the time  


between their November 2012 separation and the late-May 2013 trial, John lived with  

his parents and Sarah continued to live rent-free in the marital home.  


                    In early April Sarah asked the superior court to postpone the May custody  


trial until September.  Sarah anticipated a qualified domestic relations order (QDRO) for  


her share of John's retirement but believed it would take "two to three months" before  

she would "actually have access to [those] funds."  She asked for the continuance so that  


she could obtain the funds, retain counsel, and allow her new counsel to prepare for  


trial.   John responded that Sarah had "consented to the withdrawal of her attorney in  


March 2013" and that "inexcusable delay in employing new counsel" was not "a ground  

for continuance."  John pointed out that during the February scheduling conference Sarah  

          1         During  an  earlier  February  trial  scheduling  conference,  Sarah's  then- 

attorney  stated:    "Her  ability  to  proceed  and,  basically,  establish  funding  for  .  .  .  a  

custody trial is negligible right now, because she doesn't have the funds to do so.  I  


mean, she's probably going to be doing it alone if the court's going to proceed with  

custody.    I'm  already  in  arrears  and  I  can't  continue  to  do  that."    Sarah's  attorney  

indicated that he would accept compensation from "an early QDRO order" but noted that  


he did not yet have Sarah's consent to such an arrangement.  

                                                             -3-                                                        7015

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

had anticipated a May custody trial.  The court denied Sarah's motion for a continuance  

without comment.  

                      In late April the superior court issued a divorce decree, noting that the  


parties had agreed to proceed to trial over custody.  The court also issued Sarah a QDRO  

giving her a percentage of John's retirement benefit worth about $16,000.  

                     Also in late April John's stepfather, John L. D. (JL), sought grandparent  


visitation with John and Sarah's daughter.  JL, who is retired, often watched John and  


Sarah's daughter when they were working.  According to JL, "[h]e has cared for [his  


granddaughter] on a frequent basis since her birth [and since] the parties have separated,  


both parties have continued to use [JL] as [a] caregiver."  JL argued that Sarah had tried  


to cut him out of the child's life, that he was a psychological parent to the child, and that  

it  was  "in  the  best  interests  of  [his  granddaughter]  to  enjoy  the  benefits  of  a  close  


relationship with extended family members by having regular, predictable contact."  The  


court allowed JL's participation for the limited issue of grandparent contact with the  

                             2    Sarah  asked  the  superior  court  to  reconsider  JL's  intervention,  

parties'  daughter.     

arguing that the order "unnecessarily infring[ed] on the inherent rights of a good parent"  


and that she had evidence that JL's "open hostility" toward her had a negative impact on  


her daughter.  The superior court denied the reconsideration motion at the beginning of  




                      In early May Sarah asked the superior court for either $10,000 in interim  

attorney's fees or a three-week continuance of the custody trial.  She argued that she had  


no "funds to retain legal counsel" and that she was in the "final stages of retaining Pro  


Bono Legal Services" but could not do so without a continuance.  Sarah argued that the  

           2         Although JL, acting pro se, requested to be joined as a party under Alaska       

Civil Rule 18, and the court granted his motion to join in part, we interpret JL's request  

as a motion to intervene under Rule 24 and treat it accordingly.  

                                                                   -4-                                                             7015

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

continuance was necessary for her to "have a chance to fairly present her side [of the  


case] and have it heard."   John responded that the parties' economic situations were  


comparable and that Sarah already had received the QDRO and could have assigned the  

proceeds  to  her  former  attorney  in  lieu  of  payment.    John  noted  that  the  court  had  

rejected Sarah's April continuance request and that she should not be able to avoid  


litigation by simply hiring or attempting to hire a new attorney and claiming the new  


attorney  needed  time  to  become  familiar  with  her  case.    At  a  mid-May  scheduling  


conference, the court indicated it likely would deny Sarah's motion.  Twenty days after  


the custody trial ended the court formally denied Sarah's requests for a continuance and  

attorney's fees.  

                    A week before trial Sarah sought to compel Sarah and John's marriage  


counselor to testify.  She noted that the superior court already had indicated such an  

order  would  be  proper  -  at  a  much  earlier  hearing  Sarah's  former  attorney  had  

mentioned that he planned to "seek a court order . . . to get [the marriage counselor's]  


testimony," and the court had responded:  "Right.  You would probably get it."  She  


argued that the counselor's testimony would show that:  John possibly had neglected  


their child; during counseling John had said that his family would lie under oath for him;  


and Sarah had never been violent toward John.  The court denied the motion the next  

day,  stating  that  Sarah  "may  subpoena  [the  witness]  and  then  move  to  enforce  or  



                    Sarah and John litigated custody for four days in late May and early June  


2013.  After trial the superior court found that:  Sarah and John did not comprehend the  

dysfunctional nature of their relationship which "interfered in their ability to co-parent";  


their "chaotic relationship" had the "potential for emotional abuse of [their daughter]";  


but John "is more likely to disengage and maker healthier decisions for [their daughter]  

with his family support system," whereas Sarah "is manipulative and less capable of  

                                                              -5-                                                        7015

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

setting aside emotional factors when making decisions about [their   daughter's] best  

interest."  But the court also found both parents could meet their daughter's needs and     

"[b]oth parents are willing and able to foster a relationship between the other parent and      

[their daughter]."  

                      With  respect  to  the  competing  domestic  violence  allegations,  the  court  

determined only that Sarah had "committed one act of domestic violence" against John.  


After weighing the best interests of the child factors, the court awarded shared physical  

custody but granted John sole legal custody, provided he continue to consult with Sarah  


"on important decisions."  The court also ordered  "grandparent visitation [to] occur  

during the parental custodial time."  

                      Sarah  appeals;  we  group  her  numerous  points  on  appeal  as  follows:  


(1) whether it was error to deny her interim attorney's fees; (2) whether it was error to  


deny her a custody trial continuance; (3) whether it was error not to compel the marriage  


counselor's trial testimony; (4) whether it was error to allow JL to participate in the trial  


and to award him "de facto" custody of their daughter during John's custodial time; and  

(5) whether the legal and physical custody rulings were erroneous because (a) the court  


clearly erred in finding John as willing to foster a relationship between Sarah and their  

daughter and (b) the court did not account for John's domestic violence.  John has not  

participated in this appeal.  

                                                                     -6-                                                              7015

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



            A.	        The Superior Court Did Not Abuse Its Discretion When It Declined To  


                       Award Sarah Interim Attorney's Fees.  


                       Under AS 25.24.140(a)(1) the superior court may award "attorney fees and  

costs that reasonably approximate the actual fees and costs required to prosecute or  


defend  the  [divorce]  action"  so  long  as  such  an  award  "does  not  contribute  to  an  


unnecessary escalation in the litigation."  "The purpose of this statute is to 'assure that  


both  spouses  have  the  proper  means  to  litigate  the  divorce  action  on  a  fairly  equal  



plane.' "   Whether to award interim attorney's fees to a divorcing spouse "is committed  



to the sound discretion of the trial court"                              and primarily takes into account "the relative  


economic situations and earning powers of the parties."   "A party's economic situation  

includes the divorce property division, and a party who receives a property settlement  

            3          We review the denial of interim attorney's fees in a divorce proceeding for                 

abuse of discretion.  Limeres v. Limeres , 320 P.3d 291, 296 (Alaska 2014);                                                           id. at 302  

(stating  superior  court  did  not  abuse  its  discretion  in  declining  to  award  additional  

interim attorney's fees). A superior court has "broad discretion" over interim fee awards,  


and  its  decision  "will  not  be  disturbed  on  appeal  unless  it  is  'arbitrary,  capricious,  

manifestly unreasonable, or stems from an improper motive.' "  Lone Wolf v. Lone Wolf ,  


741 P.2d 1187, 1192 (Alaska 1987) (quoting Brooks v. Brooks , 733 P.2d 1044, 1058  

(Alaska 1987)).  



                       Limeres , 320 P.3d at 302 (quoting Heustess v. Kelley-Heustess , 259 P.3d  

462, 479 (Alaska 2011)); accord Lone Wolf, 741 P.2d at 1192.  

            5          Burrell v. Burrell , 537 P.2d 1, 7 (Alaska 1975).  

            6          Lone Wolf , 741 P.2d at 1192.  A superior court may also consider "whether  


the property was divided equally and whether an equal amount in attorney's fees was  


expended by the parties."  Siggelkow v. Siggelkow, 643 P.2d 985, 989 (Alaska 1982)  

(citing Johnson v. Johnson , 564 P.2d 71, 77 (Alaska 1977)).  

                                                                         -7-	                                                                 7015

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

sufficient to cover incurred attorney's fees should expect to pay his or her own fees."                                        7  

"When the parties' economic situations and earning capacities are comparable, each  

party should bear his or her own costs."8  

                    During the December 2012 interim hearings the superior court recognized  


that there was not a "pot of money" from which to award interim fees.  During the  

January 2013 interim hearings the court explained to Sarah's lawyer:  


                    I can't order [John] to borrow  money from his parents.  I  


                    mean, I can't do that. . . .  I'm not going to say, [John] you're  


                    going to pay $10,000.  That immediately puts [John] in the  


                    red.  I mean, I have to look at what's available before I can  


                    start making sure that the attorneys are paid, and things to  

                    that nature.  

                              . . . .  


                              I would, if you want to try to get a QDRO, I'm willing  


                    to cooperate in that . . . in order to pay you.  But what I'm not  


                    going to do is say, you get $10,000, and then you [counsel for  

                    Sarah] go ahead and start executing on [John's] paycheck,

                    because that doesn't help . . . . 


                    In mid-February Sarah's attorney indicated he would accept compensation


from "an early QDRO order" but noted that he did not yet have Sarah's consent to such  

an arrangement.  Sarah consented to her attorney's withdrawal in mid-March and the  

superior  court approved the withdrawal in late April, about the same time the court  


issued a QDRO giving Sarah a portion of John's retirement plan worth about $16,000.  

The  court  confirmed  the  property  agreement,  awarding  John  the  marital  home  but  


allowing Sarah to reside there until May 31.  John contended at this time that although  

his parents had given him money "to assist with attorney's fees," making the court- 

          7         Stevens v. Stevens, 265 P.3d 279, 290 (Alaska 2011) (per curiam).  

          8         Schmitz v. Schmitz, 88 P.3d 1116, 1130 (Alaska 2004).  

                                                              -8-                                                           7015  

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

ordered mortgage payments on the marital home forced him to live with his parents and                             

that he was "for all practical purposes, penniless."  

                    On appeal Sarah argues that because John had a higher earning potential  


than she, the superior court abused its discretion by declining to award her interim fees.  


We have explained that "[t]he primary factors to be considered when awarding interim  

spousal support and attorney's fees are the parties' relative economic circumstances,  


earning capacities, and ability to pay. . . .  [W]here the parties' economic situations and  

earning capacities are comparable, each party should bear his or her own costs."9                                            We  


have previously concluded that it is not an abuse of discretion to withhold interim fees  

when the party being asked to pay them has "no obvious source of funds" from which  

to do so.10  


                    Here there is no evidence suggesting John had the ability to pay for Sarah's  


attorney's fees.  Throughout the proceedings the court was fully aware of the parties'  

relative economic positions.  In December 2012 the court was aware that Sarah was  


working part-time and that John was temporarily between jobs.  In January 2013 John  


testified that he had "been losing money for a long time," that he was behind on the  


marital home's mortgage, that he had not been steadily employed since separating from  


Sarah,  and  that  he  and  Sarah  "constantly  had  problems  making  bills"  before  they  


separated.  At a February trial scheduling conference the court ascertained that a QDRO  

from John's retirement plan was "the only money" available for possible interim fees.  


                    Sarah argues that the superior court should have considered the fact that  


John's parents were  paying  for his attorney before declining to award her any fees.  

          9         Hanson v. Hanson , 125 P.3d 299, 309 (Alaska 2005) (emphasis added).  

          10        See, e.g., Arrasmith v. Arrasmith , Mem. Op. & J. No. 1092, 2002 WL  

1773383, at *3 (Alaska July 31, 2002).  

                                                               -9-                                                         7015

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


Although outside financial support for litigation expenses may in some cases alter a  


                                                                                                                          this is  

party's economic condition under the divorce exception's fee-shifting inquiry, 


not such a case.  Even with his parents' financial assistance, John was forced to move in  


with them to comply with the court-ordered mortgage payments he had been making on  


the marital home.  John's parents' financial support did not change his inability to pay  

Sarah interim attorney's fees.  

                    We  also  note  that  "[a]  party's  economic  situation  includes  the  divorce  

property division, and a party who receives a property settlement sufficient to cover  


                                                                                                           Sarah received a  

incurred attorney's fees should expect to pay his or her own fees."  


QDRO  in  late  April  giving  her  a  portion  of  John's  retirement  benefit  worth  about  


$16,000.  Shortly after receiving the QDRO, Sarah related to the court that she owed her  


attorney $7,000 and needed "time to retain funds to retain counsel."  Sarah's attorney had  


previously  indicated  he  was  amenable  to  an  assignment  of  Sarah's  QDRO  but  was  

uncertain whether Sarah would agree to one.  


                    The superior court was aware of the QDRO and its order that Sarah remain  


in the marital home and John pay the mortgage throughout the litigation, both of which  

                                                                                                      13   Accordingly, we  


properly could have influenced the court's attorney's fees decision.  

          11        See, e.g., Dennis   Q. v. Monika M., Mem. Op. & J. No. 1499, 2014 WL                   

1888270, at *8 (Alaska May 7, 2014).  

          12        Stevens, 265 P.3d at 290.  



                    Cf. Osterkamp v. Stiles, 235 P.3d 178, 192 (Alaska 2010) (accounting for  

the  father's  occupation  of  the  home  -  the  parties'  "largest  and  only  significant  

equity" - during the divorce-like proceedings when affirming an award of interim fees  


against him); Arrasmith , 2002 WL 1773383, at *3 (affirming denial of wife's request for  


attorney's fees in part because superior court properly considered husband's obligation  


"to make substantial additional payments" to wife to effectuate the marital property  


                                                              -10-                                                         7015

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


cannot  say  that  the  denial  of  interim  fees  was  arbitrary,  capricious,  manifestly  

unreasonable, or stemmed from an improper motive.  

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

                    Sarah's Continuance Motions.14  


                    We will find an abuse of discretion in denying a continuance " 'when a  


                                                                                                              A parent's  

party has been deprived of a substantial right or seriously prejudiced.' " 



"right to seek custody . . . is a substantial one which the courts strive to protect." 


a party's request for a continuance stems from the withdrawal of counsel, the party's lack  

of  diligence  in  retaining  new  counsel  weighs  against  granting  the  continuance.17  


Whether a continuance was properly denied turns on the particular circumstances of each  


case, but courts should "balance the need[] for . . . promptness with the right[] to fair  

          13        (...continued)  


          14        "We 'will not disturb a trial court's refusal to grant a continuance unless an  

abuse of discretion is demonstrated.' "  Sagers v. Sackinger, 318 P.3d 860, 863 (Alaska  


2014) (quoting  Greenway v. Heathcott, 294 P.3d 1056, 1062 (Alaska 2013)); accord  


Gregoire v. Nat'l Bank of Alaska, 413 P.2d 27, 33 (Alaska 1966) ("[A] trial court's  


refusal  to  grant  a  continuance  will  not  be  disturbed  on  appeal  unless  an  abuse  of  

discretion is demonstrated."), cert. denied, 385 U.S. 923 (1966).  When reviewing the  


denial of a continuance motion we "will consider 'the particular facts and circumstances  


of  each  individual  case  to  determine  whether  the  denial  was  so  unreasonable  or  so  


prejudicial as to amount to an abuse of discretion.' "  Sagers, 318 P.3d at 863 (quoting  


Greenway, 294 P.3d at 1062).  

          15       Siggelkow v. Siggelkow, 643 P.2d 985, 986-87 (Alaska 1982) (quoting  


Barrett v. Gagnon , 516 P.2d 1202, 1203 (Alaska 1973)); see also Gregoire, 413 P.2d at  


          16       House v. House , 779 P.2d 1204, 1207 (Alaska 1989).  

          17       See Barrett, 516 P.2d at 1203.  

                                                            -11-	                                                      7015

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

presentation  of  the  case."18            "  'Because  of  the  necessity  for  orderly,  prompt[,]  and  

effective disposition of litigation and the loss and hardship to the parties and witnesses,'  



a motion for continuance should be denied absent a 'weighty reason to the contrary.' " 

                   In mid-February 2013 Sarah learned that the custody trial was scheduled  

for mid-May.  A month later Sarah consented to her attorney's withdrawal, and the court  


approved the withdrawal in late April.  Sarah then twice requested continuances, asking  


the court in early April to postpone the trial until September and asking the court again  

20 days before trial for a three-week continuance.  Both motions were denied.  

                   Sarah argues that her interest in the "care, custody and control" of her  


daughter is a substantial right that was seriously prejudiced when she was forced to  



litigate custody pro se.  But the case she offers to show prejudice, Fidler v. Fidler ,                                   is 


distinguishable.  In that case the superior court attempted to notify a father of his custody  


trial date the day before trial, but the father appeared the next day expecting a status  


hearing,  unrepresented  and  unprepared  to  litigate  custody.                                 He  was  denied  a  


continuance and trial proceeded, and his inability to effectively present exhibits or cross- 

examine the mother resulted in a temporary custody award to the mother.22  

          18       Sylvester  v.  Sylvester,  723  P.2d  1253,  1256  (Alaska  1986)  (citing  

Siggelkow, 643 P.2d at 987).  

          19        Wagner v. Wagner, 299 P.3d 170, 175 (Alaska 2013) (quoting Shooshanian  

v. Dire, 237 P.3d 618, 623 (Alaska 2010)).  

          20       296 P.3d 11 (Alaska 2013).  

          21       Id. at 12-13.  

          22       Id .  at   13.    We  reversed  the  denial  of  the  father's  continuance  motion  

because he was forced "to go to trial  without being able to fairly present [his] case."  Id .  

(quoting Shooshanian,  237 P.3d at                623) (internal quotation marks omitted).  Before trial  


                                                           -12-                                                      7015

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

                    Sarah, in contrast, knew of the custody trial three-and-a-half months in  


advance and consented to her attorney's withdrawal two-and-a-half months before trial.  


And, unlike Mr. Fidler, Sarah was able to impeach John during trial, successfully object  


to testimony, and admit numerous exhibits into evidence.  The superior court also took  

pains to ensure that Sarah did not prejudice herself during the course of the proceedings  


by allowing her considerable latitude in her lines of questioning and by fully explaining  

trial processes and procedures to her.  Finally, Sarah had two-and-a-half months in which  

to secure counsel before trial.  "Prejudice resulting from a party's lack of diligence in  

securing an attorney does not afford a basis to obtain a continuance."23  


                   For these reasons the superior court did not abuse its discretion when it  

declined to grant Sarah's continuance motions.  

          C.	      The Superior Court Did Not Abuse Its Discretion With Respect To  

                   Witness Attendance.24  

                    Sarah filed a motion to compel the parties' marriage counselor to testify at  

the custody trial, but the superior court denied her motion a week before trial, noting that  


she could "subpoena [the counselor] and then move to enforce or compel." Sarah did not  

          22       (...continued)  

the court had unsuccessfully attempted to contact the father's lawyer, who was away on  


vacation.  Id .  

          23       Siggelkow, 643 P.2d at 988; see also Barrett, 516 P.2d at 1203 (noting that  


when  "  'no  diligence  in  inducing  counsel  to  remain  in  the  case  or  in  securing  new  

counsel is disclosed,' " a continuance is generally not warranted (quoting Benson v.  

Benson , 204 P.2d 316, 318 (Nev. 1949))).  

          24       We  review  the  adequacy  of  the  superior  court's  assistance  to  a  pro  se  


litigant for abuse of discretion.  See Tracy v. State, Dep't of Health & Soc. Servs., Office  


of Children Servs., 279 P.3d 613, 617 (Alaska 2012); Azimi v. Johns , 254 P.3d 1054,  


1059 (Alaska 2011).  

                                                            -13-	                                                     7015

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


do so but now argues on appeal that the court abused its discretion by failing to compel  

the counselor's testimony.  

                   We  believe  the  superior  court  discharged  its  duty  to  Sarah  as  a  pro  se  



litigant when it apprised her of the proper procedure to accomplish her goal. 


Sarah did not subpoena the marriage counselor as she had been advised to do, she cannot  

now claim error by the superior court.  

          D.       We Vacate The Grandparent Visitation Order.26  

                   1.        There was no reason to award JL visitation.  


                   Sarah argues that the visitation  award to JL - allowing him visitation  


                                                                                                       We agree with  

"during the parental custodial time" - required McTaggart findings. 

Sarah that the visitation award is infirm, but for a different reason.  When the court asked  


JL during closing arguments whether he "would want some special time for visitation  

only if your son [John] didn't get a substantial amount of visitation time," JL responded  


in the affirmative. At the end of closing arguments, the court indicated that it would only  


grant  separate  grandparent  visitation  if  John  did  not  "get  a  substantial  amount  of  


visitation  time,"  and  JL  agreed  to  this  arrangement.    The  final  custody  decree  split  

physical custody equally between Sarah and John.  

          25       See Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987) ("[T]he trial judge  

should  inform  a pro  se  litigant  of  the  proper  procedure  for  the  action  he  or  she  is  


obviously attempting to accomplish.").  

          26       " 'Whether the court applied the correct standard in a custody determination  

is a question of law we review de novo, determining the rule of law in light of precedent,  

reason, and policy.' " Elton H. v. Naomi R., 119 P.3d 969, 973 (Alaska 2005) (quoting  


Moeller-Prokosch v. Prokosch , 27 P.3d 314, 316 (Alaska 2001)).  

          27       See Evans v. McTaggart, 88 P.3d 1078, 1089 (Alaska 2004) (requiring clear  


and convincing evidence that third party visitation is in child's best interests to protect  

parents' constitutional rights in their child's upbringing).  

                                                           -14-                                                      7015

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

                    The court's visitation order does not provide concrete guidance for when  


grandparent visitation shall occur, stating only:  "Given the physical custody schedule,  


the grandparent visitation shall take place during the . . . parental visitation, and they will  


not be given a special time for grandparent visitation."  We do not construe the order to  


carve out dates from Sarah's custodial time and allocate the dates, against her wishes, to  

the grandparents.  Instead it appears to merely, and unnecessarily, allow grandparent  

visitation during John's custodial time.  

                    Because  the  record  does  not  show  that  JL  had  ever  truly  been  denied  


visitation with his granddaughter, and certainly  not by John, there was no reason to  

formally award him visitation; we therefore vacate that order.28  

                    2.        There was no de facto custody award to the grandparents.  


                    Sarah  argues  that  because  John  lived  with  his  mother  and  stepfather,  


worked frequently outside of Anchorage, and perhaps intended to seek more work out  


of town in the future, the award of physical custody to John was a de facto award of  


                                                              Sarah asserts that this type of custody award  

physical custody to the grandparents. 

          28        Accordingly, we do not need to decide whether the superior court abused   

its discretion by allowing JL to intervene in the custody proceedings.  

          29        We infrequently have dealt with de facto custody arguments.  In Elton H.  


v. Naomi R. we decided whether a temporary award of shared physical custody to the  

children's grandmother in Anchorage and an award of legal custody to the children's  

mother in Florida was in fact an award of legal custody to the grandmother given the  

mother's great geographical distance from her children. 119 P.3d at 974-75.  We found  


no grant of de facto legal custody, reasoning that, "[l]ike a parent who has placed her  

child in boarding school, it becomes more difficult for [the mother] to ensure that her  


preferences  regarding  her  children's  education,  discipline,  morality,  and  religious  

instruction are carried out.  This difficulty, however, does not deprive her of the right to  


make such decisions." Id . at 975.  And in Harvey v. Cook the issue squarely before us  


was whether granting sole legal and physical custody to the father, who was stationed  



                                                              -15-                                                         7015

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



requires clear and convincing evidentiary findings under McTaggart .    Speculating that  


John was working out of town during the custody trial and that he plans to do so again,  


Sarah argues that John "was positioning his parents to exercise de facto physical custody  


of [John and Sarah's daughter] for him if he chose to work out of town."  (Emphasis  

added.)    But,  as  the  hypothetical  connotation  of  Sarah's  language  suggests,  John's  


absence, and therefore  de facto physical custody, is only a possibility, and John's living  


situation  did  not  transform  the  grandparents  into  de  facto  custodians.                                     We  note,  


however, that if John does begin full-time work outside of Anchorage while leaving his  

daughter in her grandparents' physical custody, Sarah remains free to test her de facto  

custody arguments through a custody modification motion under AS 25.20.110.  

          E.        We Remand The Custody Decision For More Detailed Findings.  


                    1.	       The superior court's domestic violence findings are insufficient  

                              for appellate review.  

                    The superior court must make detailed findings on alleged incidents of  


domestic violence.               "[T]he requirement that . . . trial judge[s] file findings of fact"  


assures us that they have "exercised care in ascertaining the facts, and ha[ve] employed  

          29        (...continued)  

overseas, was in fact a grant of physical custody to the father's new wife requiring  


McTaggart findings, but the father returned home before we decided the case, mooting  


the issue. 172 P.3d 794, 796-98 (Alaska 2007).  

          30	       See supra note 27.  



                    In fact, such living arrangements sometimes support a parent's custody  

argument.  Cf. Green v. Parks, 338 P.3d 312, 314 (Alaska 2014) (holding superior court  

did  not  clearly  err  in  finding  mother  provided  a  stable  living  environment  under  


AS 25.24.150(c)(5) in part because mother testified she and her child were living with  


mother's parents "who assisted with childcare when [mother] was at work or in class").  



                    See Faye H. v. James B., ___ P.3d ___, Op. No. 6997 at 9, 2015 WL  

 1743199, at *4 (Alaska April 17, 2015).  

                                                              -16-	                                                        7015

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

both skill and judgment in reducing [their] thoughts on contested matters to precise and  


                                                                                                              "[D]etailed and  

pertinent findings while the evidence is still fresh in [their] mind[s]." 


explicit findings" are necessary on appeal to give us " 'a clear understanding of the basis  


of the trial court's decision, and to enable [us] to determine the ground on which the trial  



court reached its decision.' "                   Because the findings here do not achieve this purpose,  


we remand to allow the superior court to make more specific findings of fact regarding  

all of the domestic violence allegations.35  

                    Alaska  Statute  25.24.150(g)  creates  the  "rebuttable  presumption  that  a  


parent who has a history of perpetrating domestic violence against the other parent" may  


not be awarded legal or physical custody of the child.  A history of domestic violence  


exists 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 against awarding custody to a parent  

with  a  history  of  domestic  violence  "may  be  overcome  by  a  preponderance  of  the  

evidence" if "the perpetrating parent has successfully completed an intervention program  

          33        Merrill v. Merrill , 368 P.2d 546, 548 (Alaska 1962); see also Alaska R.  

Civ. P. 52(a); John N. v. Desiree N. , Mem. Op. & J. No. 1460, 2013 WL 1933133, at *5  


(Alaska May 8, 2013) (stating that when a trial court changes its mind regarding whether  


an incident rose to the level of domestic violence, there should be "findings sufficient to  


explain any significant change in the . . . perspective between one hearing and the next").  




                    Merrill , 368 P.2d at 548 (quoting Irish v. United States , 225 F.2d 3, 8 (9th  

Cir. 1955)).  



                    See,  e.g.,  Williams  v.  Barbee,  243  P.3d  995,  1003-04  (Alaska  2010)  


(summarizing our domestic violence custody cases and remanding for superior court to  

consider  whether  single  severe  choking  incident  amounted  to  a  history  of  domestic  

violence under AS 25.24.150(h), which provides that one domestic violence incident  

causing "serious physical injury" establishes a history of domestic violence).  

          36        AS 25.24.150(h).  

                                                               -17-                                                          7015

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

for  batterers"37        -  or  completes  similar  counseling  to  satisfy  the  court  that  the  

                                                 38                                                               39 



presumption has been overcome                       - "does not engage in substance abuse,"                          and "the  


best interests of the child require" the parent with a history of domestic  violence to  

participate "as a custodial parent" in the child's life.40  

                    When both parents have a history of perpetrating domestic violence the  


superior  court  must  either:    (1)  award  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 child's welfare, award custody "to  


a suitable third person if the person would not allow access to a violent parent except as  



ordered by the court."               If both parents have a history of domestic violence, but the court  


"finds that neither parent is more  likely  than the other to continue to perpetrate the  


violence," the court may in its discretion determine that AS 25.24.150(g)'s presumption  


against custody applies to neither parent, in which case the court "should consider the  


remaining best-interests factors in making its custody decision."                                     When determining  

whether the presumption against custody applies because neither parent is more likely  


than the other to continue perpetrating domestic violence, courts must "take a holistic or  

          37        Id .  

          38        Id .  See  also Stephanie  F.  v. George C., 270 P.3d 737, 753 (Alaska 2012)  

(holding "that  the r  ebuttable pr           esumption .  .  .  may be ove          rcome by      means other than the  

completion of an intervention program for batterers").  

          39        AS 25.24.150(h).  

          40        Id .  

          41        AS 25.24.150(i); see also AS 25.24.150(j) (requiring parent with history  

of domestic violence  to take certain affirmative steps before supervised or unsupervised  

visitation can be awarded).  

          42        Mallory D. v. Malcolm D. , 290 P.3d 1194, 1207 (Alaska 2012).  

                                                              -18-                                                         7015

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

qualitative  approach"  and  not  "merely  count[]"  each  parent's  domestic  violence  



incidents.           Particularly  "heinous"  or  "egregious  [acts  of]  domestic  violence"  may  

suggest that one parent is more likely than the other to continue perpetrating violence,  

especially when the other parent's domestic violence is "comparatively minor."44  

                    Under AS 25.24.150(g) superior courts must "consider alleged incidents of  


domestic violence," and when dealing with pro se litigants, "the trial court should solicit  



from the parties the information it needs to determine whether [certain incidents are]  

act[s] of domestic violence."45  

                              a.	       The parties' testimony and evidence indicate there were  


                                        allegations of serious incidents of domestic violence that  

                                        were not addressed by the superior court.  

                                        i.	       The separation incident involving a car seat  

                    In  November  2012  John  and  Sarah  argued  over  who  could  use  their  


daughter's only car seat, and this "emotionally ugly" incident resulted in their separation.  


Sarah asked John if she could use the car seat, and he responded by locking the vehicle  


containing the car seat.  John testified that Sarah then became "very irate and hostile  


towards" him.  

                    When Sarah threatened to call the police, John called JL and asked him to  


come over.  When JL arrived, Sarah locked the front door, and John  told JL to run  


around to the back door.  Sarah claims John restrained her to allow JL to get inside, but  


John testified that as he was opening the back door for JL, Sarah slammed into it and  


scared him. Sarah did not contradict John's testimony that their daughter stood between  


          43        Id.  

          44        Id.  

          45        Parks v. Parks , 214   P.3d 295, 302 (Alaska 2009) (per curiam);  accord  

Williams v. Barbee, 243 P.3d 995, 1004-05 (Alaska 2010) (per curiam).  

                                                              -19-	                                                       7015

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

them crying during this incident.  JL then came inside, picked up John and Sarah's  


daughter, and sat on the sofa, but Sarah took her daughter from him and went upstairs.  

                                       ii.       Protective order violations  

                    In November 2012 John and Sarah each obtained 20-day ex parte domestic  

violence protective orders as a result of their car seat argument.  Sarah's order against  


John was extended until December 31, 2012.  Before the order expired, John and Sarah  


agreed to dismiss their petitions for long-term protective orders on the condition that the  

superior court issue a no-contact order instead.  


                    The magistrate who issued Sarah's protective order against John wrote:  


"John admits that during the first part of their relationship he was a user of drugs and  


alcohol  which  negative[ly]  affected  his  behavior.    [H]e  engaged  in  multiple  acts  of  


domestic violence during that time."  The order forbade John from telephoning Sarah or  


"communicat[ing] in any way," except that he could call Sarah twice a day between noon  

and 8 p.m., subject to certain restrictions, and could also call to say goodnight to their  


daughter.  The order forbade John from coming within 500 feet of the marital home  

where Sarah then resided.  


                    Sarah admitted in December 2012 that she had violated John's protective  

order by calling him twice to discuss sex.  Sarah also recalled "having [a] telephone  


conversation[] with John about what to do regarding the domestic violence cases" while  

the protective orders were in effect.  John admitted during trial that he and Sarah "had  

sex many times since we split up."  

                    On December 31, 2012, as the parties were contesting domestic violence  


allegations,  the  court  cut  them  off  and  stated:    "Let  me  tell  you  right  now,  unless  


something really shows up here, you both have a history of domestic violence.  Violating  

                                                             -20-                                                       7015

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



DV orders, that's domestic violence in and of itself."                                       And the final custody decree  

states that both parties "disregard[ed]" their mutual protective orders.  

                                            iii.       The Mother's Day incident  


                      Through an affidavit Sarah contended that on Mother's Day in 2010 John  

came home drunk and began arguing with her.  She alleged that as the fight escalated  


John tried to see their daughter as she slept in her crib, but that Sarah placed herself  


between John and the crib.  According to Sarah, John then began strangling Sarah, and  


she scratched his face and pried his fingers from her neck.  By contrast John testified that  


he went to bed after coming home and awoke to Sarah pouring ice water on his head,  


angering and leading him to punch holes in the wall.  John testified Sarah punched him  


in the head repeatedly while accusing him of cheating on her. As a result of this incident,  

John and Sarah's daughter woke up and began to cry.  

                      John called the police, and Sarah was arrested because of the scratches on  


John's face, but Sarah also testified that she had told the officers not to arrest John.  

Sarah testified that she was acting in self-defense and that after the incident John's face  

           46         AS 18.66.990(3)(G) defines domestic violence as "violating [or attempting           

to violate] a protective order under AS 11.56.740(a)(1)."  AS 11.56.740(a)(1) makes it       

unlawful to "knowingly commit[] or attempt[] to commit an act with reckless disregard          

that  the  act  violates  or  would  violate  a  provision  of  the  protective   order"  "listed  in  

AS 18.66.100(c)(1)-(7)."  Under AS 18.66.100(c)(2) Sarah's protective order against  

John  prohibited  "communicat[ing]  in  any  way"  with  certain  exceptions.    John's  

protective order against Sarah does not appear in the record, although his request to  


dissolve it because he no longer feared her does.  In short, if the parties met to have sex  


or otherwise communicated while their mutual protective orders were in place, and if  


John's order was similar to Sarah's, then they both were committing domestic violence,  


and the court should have accounted for each party's protective order violations in its  

custody analysis, especially after having found that both John and Sarah "disregard[ed]"  


the protective orders.  See AS 25.24.150(c)(7), (g)-(k).  

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



was scratched, his nose bloodied, and his eye swollen shut.                                John later wrote Sarah a  

letter accepting fault for the Mother's Day incident, admitting he had choked Sarah and  

she had acted in self-defense.  In another apology letter to Sarah, John wrote that he was  


"sorry for putting [his] hands on [Sarah] in anger."  But John later testified he had never  

assaulted Sarah, and that Sarah blackmailed him into writing these letters by threatening  

to take their daughter from him.  


                    Although  John  and  Sarah  disputed  who  instigated  the  Mother's  Day  


incident and the fight's precise contours, they agreed it occurred.   Upon hearing the  


parties' testimony for the first time, the court remarked that "clearly . . . some injury . . .  


happened. . . . [B]oth parties probably have engaged in domestic violence."                                         But the  

court later found in its final custody decree that "neither party sustained their burden of  


proof" with respect to numerous domestic violence allegations without making specific  

findings  of  fact  as  to  each  allegation.    A  blanket  statement  that  neither  party  was  

"particularly  credible"  does  not  relieve  the  court  from  resolving  domestic  violence  


allegations in the context of child custody proceedings, nor does it relieve the court from  

explaining why its mind changed during the course of the proceedings.  The Mother's  


Day incident was perhaps the most egregious domestic violence allegation and should  


not have been ignored.      Based on the evidence in the record, either John strangled  

          47        Sarah  also  presented  two  affidavits  from  coworkers  attesting  to  her  

bloodied eye and bruised neck, and the court admitted exhibits into evidence showing  

John's bruised, swollen, and scratched face.  

          48        See AS 18.66.990(3)(A) (defining the crime of assault in the fourth degree     

- "recklessly caus[ing] physical injury to another person,"  AS 11.41.230(a)(1) - as  

domestic violence).  



                    Cf. Michele M. v. Richard R., 177 P.3d 830, 835-38 (Alaska 2008) (holding  

that when a court fails to consider its own domestic violence findings from an earlier  


                                                             -22-                                                       7015

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


 Sarah, Sarah punched and scratched John, or they fought each other, in which case the  

superior court should have made additional findings on whether John or Sarah acted in  

justifiable  self-defense.50  

                                         iv.       Punching holes in the wall  


                     Sarah argues that "punching holes in the wall of the marital home . . . could  



constitute an act of criminal mischief under AS 11.46.484(a)(1)."                                       John testified that  


after Sarah poured water on him during the Mother's Day incident, "I got up, and I was  

noticeably disoriented and angry.  [Sarah] walked away, and I walked over and I hit the  

          49         (...continued)  

proceeding, as well as "unrebutted testimony by a witness as to the existence of domestic  


abuse," it is "plain error for the court not to further determine whether [the] previous acts  


of  domestic  violence  constituted  a  history  of  perpetrating  domestic  violence  under  

AS 25.24.150(h)" (internal quotation marks omitted)); Thomas v. Thomas, 171 P.3d 98,  


 106 (Alaska 2007) (holding, in custody case where father pled no contest to assault, that  


"[t]he evidence of domestic violence in this case cannot accurately be characterized as  


 'insignificant'  or  'muddy.'    The  superior  court  was  presented  with  uncontroverted  

evidence of a serious episode of domestic violence, and its failure to thoroughly consider  


that issue and address it in its findings was clearly erroneous."); Puddicombe v. Dreka ,  


 167 P.3d 73, 77 (Alaska 2007) ("[W]hen the record shows that domestic violence has  

occurred and the court so finds, it is plain error for the court not to make findings as to  


whether the domestic violence amounted to a history of perpetrating domestic violence.  


If  such  a  history  is  found  then  the  path  charted  in  subsection  .150(g)-(i)  must  be  





                    See Dennis Q. v. Monika M., Mem. Op. & J. No. 1499, 2014 WL 1888270,  


at *6 (Alaska May 7, 2014) (explaining that domestic violence self-defense claims are  


"subject to the necessity and proportionality requirements that apply to all other self- 

defense claims involving non-deadly force" (citing AS 11.81.330(a))).  

          51        AS 11.46.484(a)(1) makes it a crime to intentionally "damage[] property  

of another" without the "right to do so or any reasonable ground to believe . . . such a  

right" exists.  (Emphasis added.)  See AS 18.66.990(3)(E) (classifying criminal mischief  

as domestic violence).  

                                                               -23-                                                        7015

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

wall twice.  And I put two holes in the wall, right next to the doorway.  At that point she  


was standing . . . in the hallway . . . ."  John also testified that he owned the house, and  


Sarah agreed.  

                   In Stephanie F. v. George C. we affirmed the superior court's finding that  


punching  a  bathroom  door  during  an  argument  was  domestic  violence  because  the  

                                                       52  But we also stated:  "At the outset, we reject  

mother in that case co-owned the home.     

the suggestion that ownership of a door determines whether punching a hole in it during  


an argument, in the presence of one's spouse, can constitute domestic violence.  Placing  


another  person  in  fear  of  imminent  physical  injury  'by  words  or  other  conduct'  is  


assault."       Therefore even if John owned the marital home outright, he still may have  


assaulted or attempted to assault Sarah by punching holes in their bedroom wall while  

she stood in the nearby hallway.  

                                     v.       The knife-brandishing incident  


                   John admitted during an interim hearing - and again at trial - that he had  

brandished a knife and threatened to kill Sarah's dog and slash her tires as she was  

walking away from him.  If John "recklessly place[d] . . . [Sarah] in fear of imminent  

                                                      54 then this was an act of domestic violence that  

physical injury" or attempted to do so,                          

should have been factored into the custody analysis under AS 25.24.150(g)-(i).55  

         52        270 P.3d 737, 740, 750-51 (Alaska 2012).  

         53       Id . at 750 n.35 (quoting AS   11.41.230).  See also  AS 18.66.990(3)(A)  

(classifying assault as domestic violence).  

         54        AS 11.41.230(a)(3).  

         55        See AS 18.66.990(3)(A).  

                                                         -24-                                                    7015

----------------------- Page 25-----------------------


                             b.	       The superior court made inconsistent statements about  

                                       the domestic violence incidents.  

                   In December 2012 the court stated, "Violating DV orders, that's domestic  


violence  in  and  of  itself."            In  January  2013  the  court  stated  that  it  "certainly  had  


testimony from both parties regarding incidents of domestic violence against each other,  

including the separation [incident] and the Mother's Day incident where [Sarah] was  


arrested."  The court then stated, "Clearly there is some injury that happened. . . . [B]oth  

parties probably have engaged in domestic violence."  


                   In August 2013 the superior court issued findings of fact and conclusions  


of law.  The court found that Sarah "was arrested for DV on Mother's Day 2010 and the  


charges were dropped."  The court also found that John and Sarah's "disregard for the  

Protective Orders and the no contact order heightened the litigation in this case."  The  


court then contradicted statements it made during the December 2012 and January 2013  

interim  hearings  by  finding  that  although  it  had  "received  evidence  of  situational  


domestic violence, each against the other[,] . . . neither party sustained their burden of  


proof [for] a conclusion of law with the exception of one act when the parties separated."  


The  court  then  concluded  that  Sarah  "committed  one  act  of  domestic  violence,"  

presumably during the car seat incident that led to John and Sarah's separation.56  

                   When denying Sarah's motion for reconsideration, the superior court stated  

that it did not believe the parties:  their marriage was " 'drama' seeking," their testimony  


was incredible, and there was no proof of domestic violence because neither party was  

          56        The    superior  court  apparently  concluded  that  the  car  seat  incident  

constituted domestic violence under AS 18.66.990(3)(A), which brings "a crime against   

the   person   under   AS   11.41"   within   the   ambit   of   domestic   violence.      Under  

AS 11.41.230(a)(3) "[a] person commits the crime of assault in the fourth degree if  

. . . by words or other conduct that person recklessly places another person in fear of  

imminent physical injury."  

                                                            -25-	                                                      7015

----------------------- Page 26-----------------------


"actually placed in fear of assault."  Instead, the court concluded that their "situational  

acts"  were  merely  "part  of  the  dysfunctionality  that  permeated  the  parties[']  time  


                             c.        Sarah's appeal  


                    On appeal Sarah argues that the superior court erred by not considering  


three  acts  of  domestic  violence:    (1)  John  "putting  his  hands  on  [Sarah]  in  anger";  


(2) John "punching holes in the wall of the marital home"; and (3) John "threatening to  


kill [Sarah's] dog and slash her tires."  Sarah further argues that under Parks v. Parks ,  


because she litigated custody pro se, the court should have solicited further information  



from her to determine which alleged incidents were acts of domestic violence. 

agree with Sarah.  


                   Under Alaska law domestic violence encompasses both certain specified  


                                                                      In the context of fourth degree assault,  

crimes and attempts to commit those crimes. 

defined as "recklessly plac[ing] another person in fear of imminent physical injury,"59  

we have held that because domestic violence encompasses an attempted assault, "[i]t is  


irrelevant whether [the alleged victim] was actually placed in fear."60   But the superior  


          57       214 P.3d 295, 302 (Alaska 2009) (per curiam).  

          58       AS 25.90.010 defines domestic violence by reference to AS 18.66.990, and  

AS 18.66.990(3) defines domestic violence as "one or more of the following offenses . . .  


or an attempt to commit the offense."  (Emphasis added.)  

          59       AS 11.41.230(a)(3).  

          60       Parks ,  214  P.3d  at  300.    ("Throwing  water  at  [mother]  was  therefore  

'domestic violence' . . . if [father], in doing so, 'attempted' to place [mother] in fear of  


imminent physical injury. . . .  We therefore remand for a determination whether [father]  

attempted to place [mother] in fear of imminent physical injury when he threw water at  


her.    If  he  did,  the  trial  court  must  determine  whether  [father]  has  overcome  


                                                            -26-                                                       7015

----------------------- Page 27-----------------------


court found only one incident of domestic violence by reasoning that neither John nor  



Sarah was "actually placed in fear of assault."  This was incorrect:  it was not necessary  

for Sarah or John to actually fear one another; rather, to find domestic violence, the  


superior court should have determined whether Sarah or John "attempted" to place the  


                                                               On remand the superior court should gauge  

other "in fear of imminent physical injury." 


the alleged perpetrator's intent rather than the victim's actual fear or lack thereof.  If  

Sarah  appears  pro  se,  the  court  should  solicit  from  her  the  information  it  needs  to  

determine whether certain alleged incidents are in fact domestic violence.62  

                   With respect to the numerous domestic violence allegations, the superior  

court's factual findings do not "allow us to glean from the record what considerations  


were involved."            On remand the superior court must consider the parties' allegations  

and testimony noted above and must make detailed and specific findings on the domestic  


violence allegations.64  

         60        (...continued)  

AS  25.24.150(g)'s  presumption  against  joint  legal  custody.");  accord  Harris  v.  

Governale, 311 P.3d 1052, 1058 (Alaska 2013) ("[N]o matter which person was the  

aggressor, an attempted assault occurred if the perpetrator attempted to put the victim in  

fear  of  imminent  physical  injury,  regardless  of  success,  and  attempted  assault  is  a  

domestic violence crime." (emphasis in original)).  

         61        Parks , 214 P.3d at 300; Harris , 311 P.3d at 1058.  

         62        Parks , 214 P.3d at 302.  

         63        Dragseth  v. Dragseth, 210 P.3d 1206, 1208 (Alaska 2009) (quoting Smith  

v. Weekley, 73 P.3d 1219, 1226 (Alaska 2003)).  

         64        The superior court should  consider  on  remand  the  strength  of the domestic  

violence allegations in Sarah's "Testimonial Affidavit," including but not limited to:  

(1) John broke a bathroom door to get to her - John also admitted to kicking down a  


doorframe but when no one was around; (2) John threatened in some detail to kill her;  



                                                          -27-                                                    7015

----------------------- Page 28-----------------------


                    2.	       It was not clearly erroneous  to  find that John was willing to  

                              encourage Sarah's relationship with their daughter.65  

                    Joint  legal  custody  permits  both  parents  to  "share  responsibility  in  the  


making of major decisions affecting the child's welfare" but is proper only if "the parents  


can cooperate and communicate in the child's best interest."                                   Sarah attacks the award  

          64	       (...continued)  

(3) John kicked the family dog down the stairs and laughed; (4) John kicked down the  


bedroom door; and (5) John threatened to kill Sarah's friend - at trial John equated  


murdering Sarah's friends to love.  The court also should consider the strength of John's  


domestic violence allegations, including but not limited to:  (a) Sarah once punched him  


in the side of the head; (b) Sarah threatened to kill him; and (c) Sarah threatened to break  


his wrists if he cheated on her.  

                    In  the  event  the  superior  court  finds  that  either  parent  has  a  history  of  

domestic violence under AS 25.24.150(h), we note that two of our recent decisions -  


Kristina B. v. Edward B. , 329 P.3d 202, 207-09 (Alaska 2014) and  Stephanie F. v.  

George C., 270 P.3d 737, 750-55 (Alaska 2012) - deal in some depth with overcoming  


the presumption against awarding legal or physical custody of a child to a parent with  


a history of domestic violence.  



                    We review findings of fact in custody cases for clear error, see Red Elk v.  


McBride , 344 P.3d 818, 822 (Alaska 2015), and "find clear error when, after review of  


the entire record, 'we are left with a definite and firm conviction' a mistake occurred."  

 Wee v. Eggener, 225 P.3d 1120, 1124 (Alaska 2010) (quoting Dingeman v. Dingeman ,  


865 P.2d 94, 96 (Alaska 1993)). "We give 'particular deference to the [superior] court's  

factual findings when they are based primarily on oral testimony, because the [superior]  

court, not this court, performs the function of judging the credibility of witnesses and  


weighing conflicting evidence.' " Jaymot v. Skillings-Donat , 216 P.3d 534, 539 (Alaska  

2009) (quoting Millette v. Millette , 177 P.3d 258, 261 (Alaska 2008)); see also Monsma  

v.  Williams, 385 P.2d 107, 110 (Alaska 1963).  



                    Jaymot , 216 P.3d at 540 (quoting Farrell v. Farrell , 819 P.2d 896, 899  

(Alaska 1991)) (internal quotation marks omitted).  

                                                               -28-	                                                       7015

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of sole legal custody and shared physical custody to John on the ground that the court  

clearly erred by determining that John was willing to foster Sarah's relationship with  


their daughter.            We disagree.  

                     The court's primary concern in crafting the custody award was the impact  

of  John  and  Sarah's  "chaotic"  and  "dysfunctional"  relationship  on  their  daughter's  


emotional well-being.  The court found that John was "more likely to disengage and  

make healthier decisions for [their daughter]" whereas Sarah was "manipulative and less  


capable   of   setting  aside  emotional  factors  when  making  decisions  about  [their  

daughter's] best interest[s]."  Therefore, even if Sarah were more willing than John to  


foster a relationship with the other parent in their daughter's best interests, the way she  

went about doing so could have negatively impacted their daughter.  Although it is  


important for each parent to encourage the other parent's relationship with the child, the  

importance of this factor here was properly discounted by the court's findings that the  


parents' relationship  was dysfunctional, but that John  was better able to  control  his  


          67         See AS 25.24.150(c)(6).  

          68         See Green v. Parks, 338 P.3d 312, 315 (Alaska 2014) (affirming favorable     

custody award to mother in part because superior court "found that [mother]'s reluctance   

to allow [father]'s family to spend time with their daughter was understandable to a  

certain extent, given [mother]'s difficult relationship with [father]"); Riggs v. Coonradt,  


335 P.3d 1103, 1107 (Alaska 2014) ("On balance, the court viewed the likelihood that  


[father] would try to shut [mother] out as less harmful to the children than [mother]'s  

desire to use custody as a weapon against [father]."); Limeres v. Limeres , 320 P.3d 291,  


298 (Alaska 2014) (affirming award of sole legal custody to mother in part because  


father "significantly and intentionally disparaged [the mother] in the presence of and  

directly to the children on multiple occasions"); James R. v. Kylie R. , 320 P.3d 273, 278  


(Alaska 2014) (affirming award of primary physical custody to mother in large part  

because superior court reasoned that father's willingness to foster child's relationship  



                                                                -29-                                                          7015

----------------------- Page 30-----------------------


                    The record supports the superior court's findings.  John's testimony shows  

he  realized  that  he  and  Sarah  were  not  great  communicators  and  that  the  less  they  

interacted, the less chance there would be for emotional harm to their daughter.  Both  


John and JL testified that Sarah often berated them, and at custody exchanges in front of  


John and Sarah's daughter Sarah would sometimes deliver scathing comments and imply  

that John did not give her enough money to support their daughter.  And John also  

testified that:  he wanted his daughter to be a part of Sarah's life; he was willing to accept  


Sarah's input on an appropriate preschool for their daughter; he often invited Sarah to  

play-dates with him and their daughter; he supported Sarah's relationship with their  


daughter and did not bad mouth Sarah in their daughter's presence; he recognized and  

approved  of  the  love  between  Sarah  and  their  daughter;  and  he  often  encouraged  


goodnight telephone calls between Sarah and their daughter.  Although there certainly  


is evidence to the contrary given John and Sarah's deeply troubled relationship, it was  

not clearly erroneous to find that John was willing to foster Sarah's relationship with  

their daughter.  


                   Although this factual finding was not clearly erroneous, we do not address  


whether the superior court properly balanced the best interest factors because its findings  


regarding  domestic  violence  were  insufficient,  and,  even  if  the  AS  25.24.150(g)-(i)  

          68        (...continued)  

with  mother  was  belied  by  father's  extremely  negative  characterizations  of  mother  

throughout the trial); Jaymot , 216 P.3d at 541 (affirming award of sole legal custody to  


father in part because he was "more composed and capable of extracting himself from  

the anger of the moment").  

                                                            -30-                                                       7015

----------------------- Page 31-----------------------

restrictions on custody do not apply, it may have to "reevaluate on remand the relative   

weights" of the best interest factors under AS 25.24.150(c), as well as the domestic  

violence allegations.69  


                   We VACATE the grandparent visitation order.  We otherwise AFFIRM the  

superior court's rulings except for the custody decision, and REMAND to allow the  

superior  court  to  enter  more  detailed  and  specific  findings  and  conclusions  on  the  


relevant domestic violence issues and, if appropriate, enter a new custody decision.  We  

retain jurisdiction.  

          69       See Williams v. Barbee, 243 P.3d 995, 1006 (Alaska 2010).  

                                                            -31-                                                         7015  

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