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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Lewis G. v. Cassie Y. (9/28/2018) sp-7304
Notice: This opinion is subject to correction before publication in the P ACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
LEWIS G., )
) Supreme Court No. S-16761
Appellant, )
) Superior Court No. 3PA-16-01663 CI
v. )
) O P I N I O N
CASSIE Y., )
) No. 7304 - September 28, 2018
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Palmer, Vanessa White, Judge.
Appearances: Lewis G., pro se, San Antonio, Texas,
Appellant. Darryl L. Jones, Jones & Associates, LLC,
Palmer, for Appellee.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger,
and Carney, Justices.
BOLGER, Justice.
I. INTRODUCTION
A mother moved from Texas to Alaska, taking her two children with her.
The father, still residing in Texas, filed for divorce. The parties executed a settlement
agreement awarding joint legal custody of the children to the parents, primary physical
custody to the mother, and custody during the summer and over the Christmas holiday
----------------------- Page 2-----------------------
to the father. Cooperation between the parents began to deteriorate, and the father
moved to modify custody.
The superior court concluded that there had been a substantial change of
circumstances and conducted a best interests analysis. The court elected to keep the
custody agreement largely unchanged. However, it required the father's future visitation
to occur in Alaska and imposed other conditions on his visitation and the parties'
communications. The father appeals, alleging several deficiencies in the court's analysis
and arguing that his due process rights were violated. Finding no error, we affirm the
superior court's order.
II. FACTS AND PROCEEDINGS
A. Facts
1 have two children: Rachel, born in December
Lewis G. and Cassie Y.
2002, and Harold, born in March 2005. In March 2015 Cassie moved from Texas to
Alaska, taking the children with her. After relocating, Cassie sought a domestic violence
protective order against Lewis, which the district court granted based on findings of both
assault and sexual offense.
Harold struggled with suicidal ideation while living in Texas, and he
continued to do so following the move to Alaska. In May 2015 Cassie scheduled Harold
for counseling. Shortly thereafter Harold attempted to hurt himself and was hospitalized
at North Star Hospital. After being released Harold continued to receive counseling. He
also began seeing a psychiatrist and taking prescribed psychotropic medications.
1
We use pseudonyms throughout to protect the family's privacy.
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----------------------- Page 3-----------------------
In October 2015 a Texas court entered a Final Decree of Divorce that
2
included a child custody order.
The custody order provided Cassie and Lewis joint legal
custody of the children and Cassie primary physical custody. It also stated that as long
as the parents resided more than 100 miles apart, Lewis would have physical custody of
the children during summer months and the period between Christmas and New Year's
Day.
In the months following the divorce, Cassie and Lewis initially
communicated amicably. Over time, however, Lewis began to text and email Cassie
with increasing frequency, accusing her of preventing him from contacting the children
and failing to respond to requests for information. In response, Cassie accused Lewis of
harassing her and displaying stalking behavior. Cassie eventually stopped responding
to Lewis's texts and directed Lewis to communicate with her only by email. Lewis
continued to send her both texts and emails.
In June 2016 Harold and Rachel went to stay with Lewis in Texas for the
summer per the terms of the custody order. Later that month Lewis filed a motion to
modify custody in a Texas court. He alleged that Cassie had exposed the children to a
convicted sex offender and that Cassie was neglecting the children's academic and
medical needs. The Texas court sent an investigator to Alaska, who determined that a
sex offender was living in a trailer on the same property as Cassie and the children.
Although the investigator expressed concern, he noted that the man was scheduled to
move out soon, and he advised the Texas court that he did not believe the children were
in danger. Additionally, prior to the investigator's trip to Alaska, Lewis told the
investigator that he sometimes uses methamphetamine.
2
Cassie and Lewis never married but obtained a divorce under Texas
common law.
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----------------------- Page 4-----------------------
Despite receiving ongoing treatment, Harold's mental health struggles
persisted. During 2016 he continued to battle impulses to hurt himself. In October
Harold ingested some of his mother's medication and was admitted to the hospital for
treatment. And in January 2017 Harold was diagnosed with bipolar disorder with
psychosis and ADHD. In March 2017 he was again hospitalized at North Star.
B. Proceedings
In October 2016 the Texas court concluded that it lacked jurisdiction over
the motion to modify custody because the children resided in Alaska. A few days later
Lewis filed a motion in Alaska superior court to change custody. He argued that
Harold's drug overdose earlier that month indicated that the children were at risk of
harm; that the children's grades had declined; that a convicted child rapist had lived on
the same property as Cassie and the children; that Harold's mental health issues were a
product of his living situation; that the children were living in a crowded home with
people often moving in and out; and that Cassie had attempted to sabotage Lewis's
relationship with the children. Lewis also filed a motion seeking temporary custody of
Harold and Rachel on similar grounds. The superior court referred the dispute to a
family court master.
A hearing on the temporary custody motion was held in January 2017. The
master heard testimony from Cassie, Lewis, Harold's clinicians, and one of the coaches
of Rachel's sports team. Lewis argued during the hearing that Cassie had not adequately
responded to interrogatories and a request for documents; the court later ordered Cassie
to either provide answers to Lewis's interrogatories and produce the requested
documents or state objections in writing. The master recommended that Lewis's motion
for temporary custody be denied, and the superior court adopted this recommendation.
A hearing on the motion to change custody was held in March 2017. At the
outset Lewis stated that Cassie had not provided adequate answers to his interrogatories.
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----------------------- Page 5-----------------------
He argued that he had not had time to file an objection because Cassie had submitted her
responses less than two weeks before the hearing, and he asked the master to delay the
hearing by 30 days. Cassie objected to a delay, noting that she had replied to Lewis's
interrogatories by the deadline in the court's order. The master declined to delay the
hearing. She assured Lewis that he would have an opportunity during the hearing to ask
Cassie any questions she had not answered during discovery.
Lewis, Cassie,oneofCassie's friends,oneofRachel's sportsteamcoaches,
the investigator appointed by the Texas court, and a member of Cassie's church testified
at the hearing. Afterwards the master asked Lewis if he felt his case had been prejudiced
by Cassie's failure to provide any requested documents or respond to his interrogatories.
Lewis stated that he would like Cassie to answer some questions that had not been
adequately addressed during discovery. The master allowed Lewis to ask Cassie several
questions. Lewis answered "yes" when the master asked if the court had "fully
addressed [his] concerns about the discovery."
The master made findings on the record a few weeks later. Based on
Harold's medical issues, repeated hospitalizations, and accidental overdose, the master
concluded that a substantial change in circumstances had occurred, which could warrant
3 She next considered whether modification of
modification of the custody agreement.
the agreement would be in the children's best interests.4 Citing Cassie's efforts to
address Harold's mental health needs while in Alaska - and concluding that Lewis had
not "fully recognized or accepted the extent of [Harold's] mental health issues" - the
3 See AS 25.20.110(a) ("An award of custody of a child or visitation with the
child may be modified if the court determines that a change in circumstances requires the
modification of the award and the modification is in the best interests of the child.").
4 Id. ; see AS 25.24.150(c) (listing factors a court should consider in its best
interests determination).
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----------------------- Page 6-----------------------
5
master found that the first and second best interests factors weighed in Cassie's favor.
6
The master further found that the fifth factor weighed "heavily" in Cassie's favor. She
based this finding on the fact that "all [Harold's] providers are here in Alaska," and she
stated that given Harold's "fragile condition," it was "pretty crucial" for him to
experience "continuity" in his contact with his doctors and therapists. And noting
Lewis's admission during the hearing that he had used methamphetamine in the past, the
7
master found that the eighth best interests factor also weighed in Cassie's favor.
The master found that the sixth factor weighed "slightly" in Lewis's favor
based on the finding that Cassie had unreasonably failed to keep Lewis informed of
important information about the children's medical care.8 But the master acknowledged
Cassie'scomplaints that Lewis'srepeated requestsfor informationcould beoverbearing.
9
The master found that the evidence was neutral as to the other enumerated factors.
5 See AS 25.24.150(c) ("In determining the best interests of the child the
court shall consider (1) the physical, emotional, mental, religious, and social needs of the
child; [and] (2) the capability and desire of each parent to meet these needs . . . .").
6 See AS 25.24.150(c)(5) (directing the court to consider in the best interests
analysis "the length of time the child has lived in a stable, satisfactory environment and
the desirability of maintaining continuity").
7 See AS 25.24.150(c)(8) (directing the court to consider in the best interests
analysis "evidence that substance abuse by either parent . . . directly affects the emotional
or physical well-being of the child").
8 See AS 25.24.150(c)(6) (directing the court to consider in the best interests
analysis "the willingness and ability of each parent to facilitate and encourage a close and
continuing relationship between the other parent and the child").
9 The master noted the concerns about the sex offender living on the
property, but declined to weigh this factor against Cassie because the master found that
Cassie had "sufficient safeguards in place to assure the children's safety." The master
(continued...)
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----------------------- Page 7-----------------------
Lastly, the master indicated that Harold's mental health issues, Rachel's participation in
athletics, and recent improvements in the children's academic performance were other
factors that she had taken into account when conducting her analysis. 10
Based on her findings, the master recommended that "custody be exactly
as what the parties agreed to [in their custody agreement] except that [Lewis's] visitation
needs to be in the State of Alaska." The master clarified that after custody was modified,
Lewis could "come to Alaska and have the whole summer visitation that he would
otherwise be able to exercise in Texas." The master also recommended that Cassie be
required to communicate with Lewis and to facilitate communication between him and
the children. Lastly, she recommended that Lewis be required to follow hospital
recommendations for visitation and passes while exercising visitation, and that Rachel's
"participation in her extracurricular activities . . . be maintained in the State of Alaska."
The master issued written findings of fact and conclusions of law
memorializing the findings on the record, which the superior court approved. Lewis's
9 (...continued)
also acknowledged that an Alaska court had previously found that Lewis had committed
domestic violence. See AS 25.24.150(c)(7) (directing the court to consider in the best
interests analysis "any evidence of domestic violence . . . or a history of violence
between the parents"); see also AS 25.24.150(g) ("There is a rebuttable presumption that
a parent who has a history of perpetrating domestic violence against the other parent, a
child, or a domestic living partner may not be awarded sole legal custody, sole physical
custody, joint legal custody, or joint physical custody of a child."). However, because
the parents' custody agreement granted Lewis partial custody, the master concluded that
the issue of Lewis's domestic violence had been "waive[d]." While Cassie challenges
this conclusion in her briefing, she did not appeal from the court's ruling. Accordingly,
we decline to address this issue. See Peterson v. Ek, 93 P.3d 458, 467 (Alaska 2004)
("We have consistently held that failure to file a cross-appeal waives the right to contest
rulings below.").
10 See AS 25.24.150(c)(9) (directing the court to consider in the best interests
analysis "other factors that the court considers pertinent").
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----------------------- Page 8-----------------------
motion for reconsideration was denied, and he filed an appeal. Lewis argues that the
court erred in conducting its best interests analysis, that several portions of the court's
order are unenforceable or invalid, and that the court violated his due process rights by
failing to follow the rules of civil procedure. He also argues that the requirement that the
children remain in Alaska during his periods of custody was unduly restrictive.
After Lewis filed his appeal, we issued a remand order requiring the
superior court to make supplemental findings on Lewis's substance abuse. On remand
the master concluded that no evidence had been presented to show that Lewis's
substance abuse had a direct impact on the children. She thus concluded that the eighth
11 She
best interests factor in AS 25.24.150(c) should not have weighed against Lewis.
nevertheless concluded in light of the other evidence in the record, that "[t]hese
supplementalfindings should not alter thecourt's custody award." However, after Lewis
objected to these supplemental findings, the superior court issued an order relaxing the
12
requirement that Lewis exercise his summer visitation in Alaska.
With respect to the effect of the court's findings concerning Lewis's
substance abuse, we review the court's order as amended. We conclude that the
supplemental order renders Lewis's objections to the requirement that he exercise
visitation in Alaska moot; accordingly, we decline to address his arguments concerning
11 See AS 25.24.150(c)(8) (directing the court to consider "evidence that
substance abuse by either parent or other members of the household directly affects the
emotional or physical well-being of the child" (emphasis added)).
12 The court's order stated that it "is not now requiring visits to occur in
Alaska, but is only recommending that . . . to promote stability" and provided that Lewis
"is entitled to insist his visitation occur in Texas."
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----------------------- Page 9-----------------------
13
that aspect of the original order. We are not otherwise reviewing either the
supplemental decision or the several motions now pending since Lewis filed his appeal.
III. DISCUSSION
A. The Court Did Not Err In Making Its AS 25.24.150(c) Best Interests
Findings.
"Alaska Statute 25.24.150(c) requires that the superior court base its
decision to modify a custody order on the best interests of the child. Alaska Statute
25.24.150(c) lists the factors the court should consider in its best interests
determination."14
Lewis argues that the superior court failed to take relevant evidence
into account when conducting this best interests analysis. He further argues that some
of the court's best interests findings were not supported by the record. Lastly he
contends that the court abused its discretion by considering Lewis's substance abuse in
its best interests analysis.
15 "We
A trial court has broad discretion in deciding child custody issues.
give 'particular deference' to the trial court's factual findings when they are based
primarily on oral testimony, because the trial court, not this court, performs the function
of judging the credibility of witnesses and weighing conflicting evidence."16 We will
reverse a trial court's resolution of child custody issues only if the "court has abused its
13 Specifically wedeclineto address Lewis's contentionsthat therequirement
"would essentially end the relationship that [Lewis] and his children share" and that the
superior court concluded without any "input from medical providers" that visitation
outside of Alaska posed a "potential risk to [Harold]."
14 Harris v. Governale, 311 P.3d 1052, 1055 (Alaska 2013).
15 Millette v. Millette, 177 P.3d 258, 261 (Alaska 2008).
16 Id. (alteration omitted) (quoting Ebertz v. Ebertz, 113 P.3d 643, 646
(Alaska 2005)).
-9- 7304
----------------------- Page 10-----------------------
17
discretion or the controlling factual findings are clearly erroneous." "The superior
court abuses its discretion if it considers improper factors in determining custody, fails
to consider statutorily mandated factors, or assigns disproportionate weight to some
18 A court's factual findings are clearly erroneous when,
factors while ignoring others."
after reviewing the record, we are left "with a definite and firm conviction that a mistake
has been made."19
1. The superior court did not err by failing to consider relevant
evidence.
Lewis contends that the superior court failed to take relevant evidence into
account when making its best interests findings.20
He challenges the court's findings that
21
the first two AS 25.24.150(c) factors weigh in Cassie's favor on the grounds that the
court "overlooked or ignored many things [a]ffecting the physical, mental and/or
emotional health of the children," including evidence that a sex offender had lived on the
same property as the children, that the children had struggled at school, and that Cassie
17 Harris, 311 P.3d at 1055 (quoting Iverson v. Griffith, 180 P.3d 943, 945
(Alaska 2008)).
18 Id. (quoting Iverson, 180 P.3d at 945).
19 Millette, 177 P.3d at 261 (quoting Dingeman v. Dingeman, 865 P.2d 94, 96
(Alaska 1993)).
20 Lewis suggests that the court's failure to consider relevant evidence
constituted an abuse of discretion. However, he effectively contends that the court erred
in finding that several of the AS 25.24.150(c) factors favored Cassie and that other
factors were neutral or weighed "slightly" in Lewis's favor. The court's best interests
determinations are factual findings that we review for clear error. See Harris, 311 P.3d
at 1055-56.
21 See AS 25.24.150(c)(1), (2) ("In determining the best interests of the child
the court shall consider (1) the physical, emotional, mental, religious, and social needs
of the child; [and] (2) the capability and desire of each parent to meet these needs . . . .").
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----------------------- Page 11-----------------------
was unwilling to communicate with Lewis. He similarly contends that the court "failed
to consider or ignored several things that cannot be ignored" when analyzing the stability
22
and continuity factor, including evidence concerning the sex offender, the children's
grades, Harold's accidental overdose, the frequency with which relatives moved in and
out of the children's home, and "the conditions in [Lewis's] home." Lastly Lewis argues
that the court failed to fully account for Cassie's unwillingness to communicate with
Lewis when it concluded the sixth factor - the willingness of each parent to facilitate
and encourage a relationship between the children and the other parent - weighed only
"slightly" in Lewis's favor.
We have rejected similar arguments in the past. In Millette v. Millette, for
instance, a father challenged the court's finding that a best interests factor weighed in
favor of the mother on the grounds that the superior court "failed to consider" relevant
23
evidence. We found the father's argument unpersuasive. While acknowledging that
"a review of the evidence provides some support for [the father's] assertions," we
concluded the superior court's "findings favoring [the mother] are also supported by the
24
record."
Thus "[t]hough the record may have presented some evidence disfavoring
both parties, the court's decision that this factor favored [the mother] was not clearly
25
erroneous." And in Harris v. Governale a superior court discussed the close
relationship between a father and the father's parents, but did not "separately evaluate"
22 See AS 25.24.150(c)(5).
23 177 P.3d at 264.
24 Id.
25 Id. ; see also James R. v. Kylie R., 320 P.3d 273, 282 (Alaska 2014)
(acknowledging the existence of "some countervailing evidence," but declining
appellant's "invitation to reweigh the conflicting evidence in [the] case").
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26
other less positive relationships affecting the stability of the father's household.
Concluding that "it was not unreasonable for the court to highlight the importance of the
paternal grandparents," we held that the superior court did not clearly err by concluding
27
that the stability and continuity factor favored the father.
In light of this precedent, we reject Lewis's challenges to the court's
findings on the first, second, fifth, and sixth best interests factors. The court's best
interests findings are supported by the record. In support of its finding that the first and
second factors favor Cassie, the court stated that Cassie had made extensive efforts to
address Harold's mental health needs. It also stated that Lewis had not "fully recognized
or accepted the extent of [Harold's] mental health issues."
Evidence in the record supports both assertions. During the hearings,
Cassie and one of Harold's clinicians described Harold's treatment program. The court
also heard testimony that, after Harold was hospitalized in June 2015, Cassie
immediately set up a recommended follow-up appointment with a psychiatrist. And
Cassie testified that Lewis had stopped Harold from seeing a counselor in the past, had
taken Harold off his medication, and had failed to ensure that Harold would have
sufficient medication or access to a doctor during his period of custody.
The court found that the fifth factor favored Cassie in light of Harold's
"fragile condition," "profound mental health issues," and repeated hospitalizations. The
testimony of Cassie, as well as Harold's psychiatrist, supports the court's
characterization of Harold's health; the record also contains evidence of Harold's
hospital stays and treatment program. Additionally Cassie testified that Harold "thrives"
on a regular schedule and that significant changes in his life tend to exacerbate his mental
26 311 P.3d 1052, 1056 (Alaska 2013).
27 Id.
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health issues. Lastly the court indicated that the sixth factor weighs in Lewis's favor due
to Cassie's failure to keep Lewis informed of medical issues affecting the children.
Lewis's testimony and records of the parties' text messages support the court's
characterization.
28 Lewis argues that the court's analysis of the
Citing Houston v. Wolpert ,
stability and continuity factor should have taken into account "the totality of the
circumstances [thechildren]werelikely toencounter in their respectiveparents' homes."
(Alteration in original.) In Houston a father argued that the superior court "abused its
discretion because it never 'offered any commentary or findings on [the father's] ability
to maintain stable and satisfactory relations between himself and the child.' "29 We held
that the court's conclusion that "the child had been in [the mother's] care for most of her
life and that this stability would be disrupted if custody were awarded to [the father] . . .
was not unreasonable."30 Like the father in Houston, Lewis argues the court should have
focused to a greater extent on his ability to provide stability; as in Houston, the superior
court instead focused on the potential negative effects of disrupting the stability the child
benefitted from under the current custody arrangement. Our holding in Houston does
not support Lewis's claim that the court's best interests findings were erroneous.
As in Harris, the superior court did not make findings expressly addressing
all relevant evidence in the record. And as in Millette, there is evidence in the record that
"provides some support for [Lewis's] assertions."31 But because the findings Lewis
28 332 P.3d 1279, 1284 (Alaska 2014).
29 Id. at 1283.
30 Id. at 1284.
31
Millette v. Millette, 177 P.3d 258, 264 (Alaska 2008).
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----------------------- Page 14-----------------------
challenges are supported by evidence in the record, we reject Lewis's contention that the
court's best interests analysis was erroneous.
2. The court's best interests findings are not otherwise erroneous.
In addition to arguing that the court failed to consider relevant evidence
when making its best interests findings, Lewis challenges three of the court's findings
on other grounds. First he contests the court's statement that Harold was in a "fragile
condition," arguing that the master was "not qualified to determine the condition of the
child." Second he argues that the court erred by finding that the sixth factor favored him
only slightly because in light of Cassie's noncompliance with past orders "the likelihood
that she will just comply with [the court's order mandating communication] seems slim."
Finally Lewis contests the court's finding that Cassie had safeguards in place to protect
the children from the sex offender, which the court cited in support of its finding that the
seventh factor did not weigh in favor of either parent.
Our review of the record does not leave us "with a definite and firm
32
conviction" that the challenged best interests findings are erroneous.
As noted above
there is extensive support in the record for the court's conclusion that Harold was in a
"fragile" state at the time of the hearings, including testimony from his mother and his
psychiatrist, plus extensive medical records. Lewis's contention that Cassie will not
comply with the order mandating communication is simply a prediction about Cassie's
future conduct, and is not relevant to whether the court erred in its analysis of the sixth
factor. In any event the parties' testimony and the records of their communications
provide support for the court's conclusion that this factor weighed only slightly in
Lewis's favor. Lastly Cassie's testimony that she took steps to protect her children
32 Id. at 261 (quoting Dingeman v. Dingeman, 865 P.2d 94, 96 (Alaska
1993)).
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provides support for the court's finding that she had "sufficient safeguards in place to
assure the children's safety," and Office of Children's Services' decision to place
additional children in the home further supports the court's conclusion. Accordingly we
cannot say that the court's best interests findings were clearly erroneous.
3. The superior court did not abuse its discretion by considering
evidence of Lewis's substance abuse.
Lewis argues that thesuperior court abused itsdiscretionbyconcluding that
the eighth best interests factor weighed against him. He claims that while there was
evidence in the record that he used methamphetamine, "[t]here was absolutely no
evidence presented that [his substance abuse] . . . had affected the children in any way,
which is what the statute requires."
After Lewis filed his appeal,themaster issuedsupplementalfindingsstating
that Cassie "did not establish that [Lewis's] substance abuse . . . directly impacted the
parties' minor children." Accordingly she stated that the eighth factor "should not have
weighed against either party." The master nevertheless concluded that the remaining
evidence in the record regarding the other best interests factors was sufficient to support
the court's custody decision and thus did not recommend a change to the custody award.
The superior court agreed, stating in a supplemental order that "[t]he other best interests
factors support the Master's recommendations."
Lewis is correct that the eighth best interests factor considers only evidence
of substance abuse that " directly affects the emotional or physical well-being of the
33 However the court's supplemental decision - acknowledging that this factor
child."
does not weigh against either party, but concluding that the remaining factors support the
court's custody determination - renders Lewis's argument concerning the court's
33 AS 25.24.150(c)(8) (emphasis added); see also, e.g., Barrett v. Alguire,
35 P.3d 1, 11 (Alaska 2001).
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----------------------- Page 16-----------------------
analysis of this factor in its original order moot. And while the evidence of Lewis's
substance abuse in the record has no bearing on the eighth best interests factor, the court
committed no error by considering Lewis's methamphetamine use as part of its best
34 Accordingly we conclude that the court's consideration of Lewis's
interests analysis.
substance abuse did not constitute an abuse of discretion.
B. The Superior Court Did Not Abuse Its Discretion By Ordering Joint
Legal Custody.
Lewis argues that the superior court erred by ordering joint legal custody.
35
Citing William P. v. Taunya P.,
Lewis argues that "joint legal custody is inappropriate
if the parents cannot communicate effectively." He further notes that the court "found
that [Cassie] had been refusing to communicate with [Lewis]." Accordingly Lewis
concludes that he should have been awarded sole legal custody. We review a court's
36
decision whether to grant joint legal custody for abuse of discretion.
We held in William P. that when a superior court concludes that parents
cannot communicate effectively, the court does not err by electing to award sole custody
37 38
to one parent. We have reached this conclusion in other cases as well. Despite
Lewis's characterization, the superior court here did not find that the parents could not
communicate effectively - unlike in William P. and related cases. Rather the court
34 See AS 25.24.150(c)(9) (directing the court to consider "other factors that
[it] considers pertinent").
35 258 P.3d 812, 815 (Alaska 2011).
36 See Houston v. Wolpert, 332 P.3d 1279, 1285 (Alaska 2014).
37 See William P., 258 P.3d at 815.
38 See Houston, 332 P.3d at 1285; Co v. Matson, 313 P.3d 521, 525 (Alaska
2013).
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----------------------- Page 17-----------------------
noted that Cassie had not kept Lewis adequately informed of the children's medical
treatment and lamented the "vicious circle" of Lewis hounding Cassie for information
and Cassie becoming reticent due to frustration. But though the court acknowledged that
the parents had difficulty communicating prior to the hearings, it did not find that
communication was impossible.
Furthermore the court's findingsand instructions for the parties suggest the
court believed that the parties would be capable of communicating in the future. The
court instructed Cassie and Lewis that in the future, communication between the parents
regarding the children's medical appointments should occur "in writing via email." And
the court noted the parties' need for medical information about the children and "a good
way to exchange it." Because the court did not conclude that Cassie and Lewis are
incapable of communicating, we decline to conclude that its decision to award joint
custody constituted an abuse of discretion.
C. The Conditions Imposed On Lewis's Visitation Were Not Too Vague
To Be Workable.
In its written findings of fact and conclusions of law, the superior court
directed Lewis to "maintain all therapeutic appointments while exercising visitation"
with the children, to "follow therapeutic recommendations as to [Harold] and [Rachel],"
and to "follow the visitation guidelines [set] by [Harold's] treatment facility or treating
physician." Lewis argues that these requirements are too vague to be workable. He
contends that unanswered questions precludehimfromcomplying with thecourt's order,
including whether Lewis would be "allowed to seek a second opinion" if he does not
agree with the recommendations and what procedures he is to follow if
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----------------------- Page 18-----------------------
"recommendations from two or more [providers] contradict each other." We have held
that uncertainty can be "fatal to the validity of [a] court's visitation . . . award[]." 39
40 and Matthew P. v.
We addressed similar arguments in Virgin v. Virgin
41 In Virgin we considered a provision in a divorce decree indicating that if the
Gail S.
mother remained in the city where she was then residing, the father's visitation should
be "open and reasonable."42 The father argued that this ambiguous provision rendered
the order "too vague to be sustained upon review."43 Noting that "[t]he order's only
ambiguity" would become relevant only if the mother actually failed to move, we held
that "[b]ecause it is unlikely that the parties will have to rely on this provision, its
ambiguity is not fatal."44 We further held that the father could "ask the superior court to
clarify its order" as needed.45 In Matthew P. we similarly acknowledged that a superior
court "could have been more precise in articulating what it expected [the appellant] to
do in order to remove the requirement for supervised visitation."46 But we held that the
39 Long v. Long , 816 P.2d 145, 157 (Alaska 1991).
40 990 P.2d 1040 (Alaska 1999).
41 354 P.3d 1044 (Alaska 2015).
42 990 P.2d at 1048.
43 Id.
44 Id.
45 Id.
46 354 P.3d at 1050-51.
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parties could resolve any confusion "about what issues the court wants addressed" by
47
"mov[ing] the [superior] court for clarification."
Here we are similarly unpersuaded that the court's order is too vague to be
sustained upon review. Like the provision examined in Virgin, the majority of the
ambiguities Lewis describes would become relevant only under a narrow set of future
circumstances that are not certain to occur. We suggest the parties should resolve any
future confusion concerning the superior court's instructions by moving that court for
clarification.
D. The Requirement That Rachel's Extracurricular Activities Be
Maintained Was Not Overly Restrictive.
Themaster recommended that Rachel's "participationinherextracurricular
activities . . . be maintained in the State of Alaska." The superior court's written order
stated that "[t]he minor children's extracurricular activities shall be maintained by both
parties."48
Lewis argues that the requirement that the children's participation in
extracurricular activities be maintained was overly restrictive. He contends that
decisions about what activities children should participate in are "choices that are a
parent's to make, not a court's." We review this portion of the court's order for abuse
49
of discretion.
47 Id. at 1051.
48 The order also stated that "[Harold's] participation in . . . practices and
competitions shall be maintained during [Lewis's] visitation." The reference to Harold,
rather than Rachel, is apparently an error; during the hearings the court heard testimony
about Rachel's participation in practices and competitions, and indicated its desire to
ensure her participation continued.
49 See Frackman v. Enzor, 327 P.3d 878, 884 (Alaska 2014).
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50
We considered a similar situation in Frackman v. Enzor . Noting that the
parties' son was "a gifted athlete and may have a chance to play baseball professionally,"
the superior court "allowed [his father] '[to] authorize [the son] to attend baseball
training, tournaments, and related activities' on Sundays even though [the mother's]
51 We affirmed, reasoning that "the superior
visitation was also ordered for Sundays."
court properly concluded . . . that [the son's] best interests - here, developing his
baseball skills and eventually his potential to become an accomplished athlete - took
precedence over [the mother's] right to have visitation on Sundays."52
Here the court heard evidence that Rachel is an extremely accomplished
athlete, and it found that she "may very well be on course to being an Olympic athlete."
The court further stated that Rachel's passion would give Lewis "an opportunity to
engage in that [activity] with her . . . in Alaska." In light of these findings, we conclude
that the requirement that Rachel's participation in practices and competitions be
maintained during Lewis's visits did not constitute an abuse of discretion. The court's
order takes Rachel's best interests into account, and it does not seem likely to unduly
impact Lewis's visitation or his relationship with his daughter.
E. The Superior Court Did Not Deny Lewis His Right To Due Process By
Ignoring The Rules Of Civil Procedure.
Lewis argues that the court "effectively denied [him] his right to due
process" by failing to order Cassie to respond to his discovery requests in a timely
50 Id.
51
Id. (second alteration in original). The court provided that themother could
make up missed visits on other days. Id.
52 Id.
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53
fashion, declining to conclude that Cassie waived her right to object to his requests, and
54
failing to grant Lewis sufficient time to address deficiencies in Cassie's responses. He
further argues that because he received Cassie's answers less than two weeks before the
March hearing, and because the court denied his request to reschedule the hearing, Lewis
did not have an opportunity to respond to the deficiencies in Cassie's answers to the
interrogatories or to "deal with [Cassie's] failure to produce any documents." And he
contends that because Cassie did not respond to Lewis's discovery requests in a timely
55
fashion, the court should have concluded that she had waived her right to object.
"Whether the superior court violated a party's due process rights is a question of law,
which we review de novo." 56
Even assuming the truth of Lewis's allegations, any violation of the Alaska
Civil Rules must have prejudiced Lewis in order to warrant disturbing the custody
57 "The party alleging error bears the burden of showing the error
modification order.
53 See Alaska R. Civ. P. 33(b)(3) (setting time limit for objecting to
interrogatories).
54 See Alaska R. Civ. P. 33(b)(4) ("All grounds for an objection to an
interrogatory shall be stated with specificity. Any ground not stated in a timely objection
is waived unless the party's failure to object is excused by the court for good cause
shown.").
55 See id.
56 Easley v. Easley, 394 P.3d 517, 520 (Alaska 2017) (quoting McCarrey v.
Kaylor, 301 P.3d 559, 563 (Alaska 2013)).
57 Alaska R. Civ. P. 61 ("[N]o error or defect in any ruling or order or in
anything done or omitted by the court . . . is ground for granting a new trial or for setting
aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order,
unless refusal to take such action appears to the court inconsistent with substantial
justice."); see Roberson v. Morrison, No. S-15361, 2014 WL 6091943, at *2 (Alaska
(continued...)
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was prejudicial." 58 But Lewis does not attempt to show how he was prejudiced by the
procedural deficiencies, and it is not clear how he could do so. When Lewis's request
that the March hearing be rescheduled was denied, he was granted an opportunity during
that hearing to ask Cassie for any information she had not provided during discovery.
After asking Cassieseveralquestions, Lewis indicated that thecourthad "fullyaddressed
[his] concerns about the discovery." Earlier in the proceeding, the master asked Lewis
whether he "fe[lt] like [his] case ha[d] been prejudiced by the lack of discovery from
[Cassie]." Lewis replied that his only concern had been Cassie's failure to respond to
his interrogatories. Accordingly wehold thatany procedural deficiencies wereharmless.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the superior court.
57 (...continued)
Nov. 12, 2014) (rejecting claim that superior court's delay in issuing final decision
violated Alaska Rules of Civil Procedure and appellant's due process rights, because
appellant "ha[d] not shown any prejudice from the timing of the superior court's order");
McDonald v. Dean, No. S-10914, 2004 WL 243557, at *3 (Alaska Feb. 11, 2004)
(rejecting due process claim arising from a child custody dispute because "although [the
father] failed to strictly comply with Alaska Civil Rule 77 . . . any procedural defect was
harmless").
58 Jerry B. v. Sally B., 377 P.3d 916, 930 (Alaska 2016).
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