| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
|
You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Saffir v. Wheeler (2/22/2019) sp-7337
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
DAISY SAFFIR, )
) Supreme Court No. S-17012
Appellant, )
) Superior Court No. 3AN-17-09513 CI
v. )
) O P I N I O N
MICHAEL WHEELER, )
) No. 7337 - February 22, 2019
Appellee. )
)
A
ppeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Herman G. Walker, Jr., Judge.
Appearances: Kara A. Nyquist, Nyquist Law Group,
Anchorage, for Appellant. Michael Wheeler, Pro Se,
Anchorage, Appellee.
Before: Bolger, Chief Justice, Winfree, Stowers, Maassen,
and Carney, Justices.
BOLGER, Chief Justice.
I. INTRODUCTION
A mother wishes to relocate with her daughter to New York. She sought
primary custody, alleging that the father's drinking and busy schedule made him an
improper guardian for their two-year-old. The superior court concluded that it was in the
child's best interests to remain in Alaska, in her father's custody. The mother appeals,
arguing that the superior court erred in its analysis.
----------------------- Page 2-----------------------
Becausethesuperior court didnotproperlyconsider theeffect ofseparating
the child from her mother, we vacate its custody order and remand for further analysis.
However we affirm the court's decision not to order protective measures to ensure the
father's sobriety while caring for the child.
II. FACTS AND PROCEEDINGS
A. Facts
Daisy Saffir and Michael Wheeler had adaughter in June 2015. They never
married, but began living together during Saffir's pregnancy. Their relationship grew
strained over the next two years, largely because of tensions caused by Wheeler's
drinking, and they broke up in the summer of 2017. They continued living together with
their daughter throughout the proceedings in this case.
Saffir's family lives in New York, and the couple discussed the possibility
of moving there with their daughter before they broke up. But these discussions fell
apart by the time they separated or shortly thereafter.
B. Proceedings
In October 2017 Saffir filed a complaint seeking primary custody of her
daughter. She also filed a motion for interim custody requesting permission to move to
New York with the child immediately.
The superior court held a hearing on the motion for interim custody on
December 20. Saffir testified that she maintained the child's routine and was her primary
caretaker, and that Wheeler's drinking habits and work schedule interfered with his
ability to parent. Saffir introduced a journal she had made to document Wheeler's
drinking, with entries running from September 2016 to December 2017. She also
introduced Wheeler's records fromProvidence Breakthrough Addiction and Behavioral
Health Services - a treatment center where Wheeler had been provisionally diagnosed
with mild "alcohol use disorder" - and testified that he resumed drinking after
-2- 7337
----------------------- Page 3-----------------------
completing outpatient treatment there in June 2016. In response Wheeler testified that
he participated in the child's day-to-day care, but that Saffir "micromanaged" him and
made it difficult for him to do things like put their daughter to bed. He said the drinking
Saffir reported was the result of the tensions in their relationship and disputed the
conclusions reached by Providence Breakthrough.
The superior court denied Saffir's motion for interim custody, making oral
findings that it had not "heard . . . anything that says any of [Wheeler's] conduct is
detrimental to the child." But the court did "order that . . . Wheeler not have any alcohol
around the child." It also found that "Saffir has been the primary custodian."
The superior court held final custody hearings one month later, on
January 29 and 31, 2018. It had previously clarified that it would also consider the
evidence presented at the interim custody hearing when making its final custody
decision. The issue of Wheeler's drinking dominated the proceedings. Saffir's
stepfather and sister both testified that they had seen Wheeler drink excessively when he
visited them in New York. They further testified that Saffir actively tried to involve
Wheeler in the child's life. Saffir also offered the testimony of a counselor who assessed
Wheeler for Providence Breakthrough and expert testimony from Vivian Patton, a
counselor who treats "mental health and substance use issues," but who did not interview
Wheeler and based her opinion solely on his medical records and the litigation materials.
Both said that Wheeler met the criteria for alcohol use disorder. Finally Saffir herself
testified at length about Wheeler's schedule and drinking, and said that she had found
him intoxicated while caring for their daughter on three separate occasions. She also
explained how she facilitated Wheeler's involvement with their daughter.
For his part Wheeler testified that his work schedule was flexible enough
to allow him to care for the child and that he had been an active part of her life since
birth. He disputed Saffir's testimony about his alcohol use and claimed that he had been
-3- 7337
----------------------- Page 4-----------------------
sober for "three or four" months prior to the trial. He introduced data from Soberlink -
a service that uses a portable breathalyzer to monitor alcohol use at scheduled times -
to demonstrate his sobriety. Finally he sought to discredit Saffir's journal with the
testimony of three friends.
At the end of the hearing, the superior court made several oral findings. It
concluded that "Saffir has been controlling" and that this is "interfering with . . .
Wheeler's ability to parent." It also found that the testimony of Saffir's relatives about
Wheeler's alcohol use was credible, but found Wheeler's testimony credible as well. In
contrast the court did not "find [Saffir's journal] very reliable," and expressed a
skepticism that it was created for litigation purposes. Finally the court stated that "the
drinking has been mitigated to an extent by the steps that . . . Wheeler has taken,"
including using Soberlink and enrolling in Providence Breakthrough.
The superior court issued its final custody order in February 2018. It
concluded that "it is in the child's best interest to remain in Alaska until kindergarten,"
but that "[w]hen [she] reaches kindergarten age the court will consider this a substantial
change of circumstance and the parties can readdress custody again." In reaching this
decision, the court first addressed Saffir's relocation to New York and the impact such
a move would have on the child. It found that Saffir had a legitimate reason to move to
New York, but that "[c]onsistent contact with [Wheeler] will be disrupted if [the child]
is allowed to relocate." While the court recognized that the child would benefit from the
extended family she has in New York, it reasoned that Saffir's actions while in Alaska
"indicate[] that she is overly protective of [the child] to such an extent it interferes with
[Wheeler's] ability to parent" and that "[t]his control will be exacerbated in New York."
The superior court found that Saffir had been the child's "primary day to day caregiver,"
but that this was at least in part because she had prevented Wheeler from "handl[ing] day
to day issues."
-4- 7337
----------------------- Page 5-----------------------
The court then proceeded to consider the child's best interests, discussing
1
each of the factors listed in AS 25.24.150(c).
It found that (1) the child had no special
1 This section provides that:
The court shall determine custody in accordance with
the best interests of the child under AS 25.20.060-25.20.130.
In determining the best interests of the child the court shall
consider
(1) the physical, emotional, mental, religious, and
social needs of the child;
(2) the capability and desire of each parent to meet
these needs;
(3) the child's preference if the child is of sufficient
age and capacity to form a preference;
(4) the love and affection existing between the child
and each parent;
(5) the length of time the child has lived in a stable,
satisfactory environment and the desirability of maintaining
continuity;
(6) the willingness and ability of each parent to
facilitate and encourage a close and continuing relationship
between the other parent and the child, except that the court
may not consider this willingness and ability if one parent
shows that the other parent has sexually assaulted or engaged
in domestic violence against the parent or a child, and that a
continuing relationship with the other parent will endanger
the health or safety of either the parent or the child;
(7) any evidence of domestic violence, child abuse, or
child neglect in the proposed custodial household or a history
of violence between the parents;
(8) evidence that substance abuse by either parent or
(continued...)
-5- 7337
----------------------- Page 6-----------------------
needs; (2) that both parents had the ability and desire to meet her needs; (3) that the child
was not old enough to have a preference between her parents; (4) that love and affection
existed between the child and each parent; (5) that "maintaining stability and continuity
in Alaska at this time is important for the child" because Saffir's tight control over the
child's schedule would "thwart [Wheeler's] ability to parent when he has custody";
(6) that Saffir's "actions demonstrate that she will not allow an open and loving
relationship between" Wheeler and the child and that this would "be exacerbated if [the
child] is allowed to relocate to New York"; (7) that there was no evidence of child
neglect or abuse; and (8) that Wheeler had "taken steps" to address his drinking problem
and that his "alcohol issues" did not "affect the well[-]being of the child."
Based on these findings, the superior court awarded primary physical
custody to Wheeler if Saffir moves to New York. In that scenario Saffir was awarded
custody of the child for one week each month, with the location of her custody
alternating between New York and Alaska. In the event that Saffir stays in Alaska, the
court ordered a 2-2-3 custody schedule. The court did not impose any conditions
requiring Wheeler to be sober or demonstrate sobriety while caring for the child. Saffir
appeals.
III. DISCUSSION
Saffir appeals all but two of the superior court's best-interests
determinations, as well as the weight given to them. Saffir also argues that the superior
court abused its discretion by not ordering protective measures to ensure Wheeler's
sobriety while with the child. Because we agree that the court's analysis of the fifth best-
1 (...continued)
other members ofthehouseholddirectlyaffects theemotional
or physical well-being of the child;
(9) other factors that the court considers pertinent.
-6- 7337
----------------------- Page 7-----------------------
2
interests factor did not conform with our precedent - namely that it did not include a
symmetric analysis of the impact Saffir's move would have on the child if the child
remained in Alaska or if she moved with Saffir to New York - we remand to the
superior court for further analysis. We however affirm the superior court's decision not
to order protective measures.
A. The Failure To Engage In Proper Symmetrical Analysis Was Legal
Error.
1. The Moeller-Prokosch framework
Where, as here, a custody dispute involves one parent's plan to leave the
state, superior courts must use a two-step process to determine the best interests of the
3 The superior court must first "determine whether the planned move is
affected child.
4
'legitimate.' " If the superior court finds that the move is legitimate, it "must assume
that the move will take place and then consider the . . . statutory factors to determine the
custody arrangement that serves the best interests of the child[]."5 "Performing the best
interests analysis based on [a parent's] assumed move requires symmetric consideration
of the consequences to [the child] both if [the parent] leaves with [the child] and if [the
2 "[T]he length of time the child has lived in a stable, satisfactory
environment and the desirability of maintaining continuity." AS 25.24.150(c)(5).
3 Moeller-Prokosch v. Prokosch, 27 P.3d 314, 316 (Alaska 2001) (Moeller-
Prokosch I).
4 Mengisteab v. Oates, 425 P.3d 80, 85 (Alaska 2018) (quoting Moeller-
Prokosch I, 27 P.3d at 316). "A move is legitimate if it is not primarily motivated by a
desire to make visitation more difficult." Rego v. Rego, 259 P.3d 447, 453 (Alaska
2011).
5 Veselsky v. Veselsky, 113 P.3d 629, 632 (Alaska 2005) (citing Moeller-
Prokosch I, 27 P.3d at 316) (footnote omitted).
-7- 7337
----------------------- Page 8-----------------------
6
parent] leaves without [the child]." This analytical framework "ensures that courts
weigh costs and benefits to a child when one parent asks for a custody order reflecting
7 Whether the superior court properly applied the Moeller-Prokosch
their plan to move."
8
legal standard is subject to de novo review.
2. The court's analysis of best-interests factor five
The superior court found that Saffir's move to New York was legitimate,
and neither party disputes this finding.9
However Saffir argues that the superior court
did not apply the proper symmetric considerations when it analyzed the fifth best-
interests factor. Factor five requires the superior court to consider "the length of time the
child has lived in a stable, satisfactory environment and the desirability of maintaining
10
continuity." We have explained that where one parent is moving from Alaska, factor
five requires the superior court to consider "not only the desirability of maintaining
6 Moeller-Prokosch v. Prokosch, 99 P.3d 531, 535-36 (Alaska 2004)
(Moeller-Prokosch III ).
7 Pingree v. Cossette, 424 P.3d 371, 385 (Alaska 2018).
8 See Mengisteab, 425 P.3d at 85, 87, 89.
9 Saffir does argue, however, that the superior court failed to assume that her
move would occur by ordering two alternative custody schedules: one for if she stays
in Alaska and one for if she moves to New York. We disagree. We rejected this
argument in Rego v. Rego, where we held that "the superior court is authorized to order
'alternative custody arrangements dependent on whether the move occur[s].' " 259 P.3d
at 456 (Alaska 2011) (alteration in original) (quoting Silvan v. Alcina , 105 P.3d 117, 122
(Alaska 2005) (citing Moeller-Prokosch I, 27 P.3d at 317 n.8)). We explained that a
superior court "may be confronted with a custodial parent who would choose not to
move if he or she cannot maintain custody," but that "[t]he chance that the superior
court's decision will influence [the parent's] decision to move does not justify reversing
the superior court's order." Id . at 456 (quoting Moeller-Prokosch I, 27 P.3d at 316).
10 AS 25.24.150(c)(5).
-8- 7337
----------------------- Page 9-----------------------
11
geographical continuity, but also the importance of maximizing relational stability."
This means that "[c]ourts should consider 'social and emotional factors such as who the
12
primary care-giver was for the child.' " Factor five was the basis for our decision in
13
and we have "expressed particular concern that . . . court[s]
Moeller-Prokosch III,
conduct a symmetrical analysis with regard to a child's relational and geographical
stability."14
The superior court found that factor five favored Wheeler. It explained that
the child had "lived in her [f]ather's home since birth" and that "[m]aintaining stability
and continuity is important for toddlers." The court noted that Saffir had created a strict
routine for the child that "has sometimes hindered [Wheeler's] ability to parent," and
expressed concern that this dynamic would only worsen if the child moved across the
country with Saffir. But the superior court did not discuss the impact that being
11 Chesser-Witmer v. Chesser , 117 P.3d 711, 719 (Alaska 2005) (quoting
Meier v. Cloud , 34 P.3d 1274, 1279 (Alaska 2001)).
12 Veselsky v. Veselsky, 113 P.3d 629, 635 (Alaska 2005) (quoting Rooney v.
Rooney, 914 P.2d 212, 217 (Alaska 1996)). We have acknowledged that the child's
relationship with extended family could be properly considered as a part of factor five
as well. See Rego, 259 P.3d at 460 ("The superior court considered circumstances that
Dante was likely to encounter in each environment, such as contact with extended
family, and showed due consideration for the statutory 'stability' factor."). Saffir argues
that the superior court failed to consider the "the importance of [the child's] strong bond
with her maternal extended family" in New York. We note, however, that the superior
court recognized that a move to New York would "be good for the [child] because she
has extended family there."
13 See 99 P.3d at 535 n.17 ("[T]he impact of separation is . . . properly
considered as part of the stability analysis under the fifth statutory factor.").
14 Mengisteab v. Oates, 425 P.3d 80, 87 (Alaska 2018).
-9- 7337
----------------------- Page 10-----------------------
separated from Saffir would have on the child, even though it had found that Saffir was
her "primary day to day caregiver."
15
We recently vacated a similar custody order in Mengisteab v. Oates .
There a mother sought to modify an existing custody agreement, which had given her
16 After a hearing the
primary custody, because "she would be moving out of state."
superior court issued a written order finding that it was in the child's best interests to live
in Alaska with his father.17 The order placed a heavy emphasis on the mother's
unwillingness to facilitate a relationship between the father and the child: "[The child's]
best interests would best be served by having both parents available to [him]. If left in
mother's primary custody in Washington, the court believes that mother would continue
to interfere with father's access and parenting."18 We found that "the court erred in
failing to adequately consider the effect living in Alaska without his mother and siblings
would have on continuity and stability in [the child's] life."19 Although the superior
court discussed the effect that the mother's move would have on the father's ability to
parent, it was error for it not "to consider the potential consequences to [the child] both
if he were to live in Washington with [his mother] and if he were to live in Alaska
without her."20
15 Id . at 92.
16
Id. at 84.
17 Id. at 85.
18 Id. at 84-85 (second alteration in original) (quoting superior court's order).
19 Id. at 87.
20
Id. at 89 (citing Moeller-Prokosch III, 99 P.3d 531, 535-36 (Alaska 2004)).
-10- 7337
----------------------- Page 11-----------------------
The superior court's analysis here suffers from the same imbalance. The
court placed great weight on its finding that Saffir would interfere with Wheeler's ability
to parent. But it did not address the impact of removing the child from her established
routine or from Saffir, the parent who established it. Our precedent regarding symmetric
21 especially
analysis of the fifth best-interests factor required the superior court to do so,
in light of its finding that "Saffir has been [the child's] primary custodian."22 We
therefore hold that there was a failure to engage in proper symmetrical analysis, which
constituted error.
B. The Superior Court Did Not Abuse Its Discretion By Not Ordering
Protective Measures When The Child Is In Wheeler's Care.
Having concluded that the superior court's legal error with respect to its
analysis of the fifth best-interests factor is grounds for remand,23
we now turn to her
argument that the superior court erred by not putting in place protective measures to
ensure Wheeler's sobriety while caring for the child. "We will uphold a superior court's
. . . visitation determinations 'unless the record shows that its controlling findings of fact
24
are clearly erroneous or the court abused its discretion.' "
21 See Moeller-Prokosch III , 99 P.3d at 535 (stating that the superior court
failed to "consider the detriment to [the child] if he were separated from his mother upon
her move to Florida.").
22 See Veselsky v. Veselsky, 113 P.3d 629, 635 ("Courts should consider
'social and emotional factors such as who the primary care-giver was for the child.' "
(quoting Rooney v. Rooney, 914 P.2d 212, 217 (Alaska 1996))).
23 Wehavealsoconsidered Saffir'sargumentsregarding factorsone, two, six,
seven, eight, and nine and conclude that the superior court's findings had support in the
record and were not clearly erroneous. That said, the superior court may need to reweigh
the best-interests factors after it reconsiders factor five.
24 Houston v. Wolpert, 332 P.3d 1279, 1282 (Alaska 2014) (quoting
(continued...)
-11- 7337
----------------------- Page 12-----------------------
Saffir asked the superior court to require Wheeler to be sober while with
their daughter and to order affirmative measures to ensure his sobriety. The court's final
order granted primary physical custody to Wheeler, but did not explicitly require his
sobriety or otherwise include the measures Saffir requested.
While it did not explain the reason for these omissions, the superior court
discussed Wheeler's drinking at length and ultimately found that it did not "affect the
well[-]being of the child." This finding is supported by the record. The superior court
explained that while Wheeler "did have issues with alcohol[,] [h]e has taken steps to
address this issue." Wheeler testified that he had sought proper medical care for chronic
pain caused by a spinal injury and was no longer self-medicating with alcohol. He said
that he had not had a drink for three or four months at the final custody hearing and
introduced Soberlink data to show that he had been sober during the month since the
interim custody hearing. Wheeler also testified that he does not drink before or while
caring for the child and indicated that he thought it would be irresponsible to do so.
Saffir offered conflictingevidenceto provethat Wheelercontinued to drink
through the period during which he claimed sobriety and that this drinking endangered
their child. But "[w]hen the superior court is faced with conflicting evidence, we do not
re-weigh it. 'It is the job of the trial court, not the appellate court, to judge the credibility
25 We cannot say that the superior
of the witnesses and to weigh conflicting evidence.' "
court's finding was clearly erroneous in light of the evidence presented at trial. We
24 (...continued)
Borchgrevink v. Borchgrevink, 941 P.2d 132, 134 (Alaska 1997)).
25 Silvan v. Alcina, 105 P.3d 117, 122 (Alaska 2005) (quoting Native Alaskan
Reclamation & Pest Control, Inc. v. United Bank Alaska, 685 P.2d 1211, 1215 (Alaska
1984)).
-12- 7337
----------------------- Page 13-----------------------
therefore conclude that the decision to put no protective measures in place while the
child was in Wheeler's care was not an abuse of discretion.
IV. CONCLUSION
We VACATE the superior court's February 15, 2018 custody order and
REMAND for further analysis consistent with this opinion.
-13- 7337
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
