| 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. Joy B v. Everett B (11/1/2019) sp-7417
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
JOY B., )
) Supreme Court No. S-17129
Appellant, )
) Superior Court No. 2KB-16-00047 CI
v. )
) O P I N I O N
EVERETT B., )
) No. 7417 - November 1, 2019
Appellee. )
)
A
ppeal from the Superior Court of the State of Alaska,
Second Judicial District, Kotzebue, Paul A. Roetman, Judge.
Appearances: Bonnie J. Coghlan, Downes, Tallerico, &
Schwalm Law Firm, LLC, Fairbanks, for Appellant. Terri-
Lynn Coleman, Law Office of Rita T. Allee, P.C., Fairbanks,
for Appellee.
Before: Bolger, Chief Justice, Winfree, Stowers, Maassen,
and Carney, Justices.
MAASSEN, Justice.
I. INTRODUCTION
A married couple with a ten-year-old son separated in 2014. Following an
evidentiary hearing on temporary orders, the trial court found that the father had a history
of perpetrating domestic violence and ordered him to complete an intervention program
for batterers before he would be allowed unsupervised visitation with the child.
----------------------- Page 2-----------------------
At the later custody trial, the director of the intervention program testified
that the father had sought entry to the program but had been determined to be unsuited
for it because he was a victim of domestic violence rather than a perpetrator. The
custody investigator's report confirmed these conclusions and recommended that the
father be granted sole legal and primary physical custody of the child because of the
mother's coercive influence and her inability to meet the child's mental and emotional
needs.
Relying primarily on the testimony of the batterers' program director and
the custody investigator, the trial court concluded that the father had overcome the
statutory presumption against awarding custody to a parent with a history of perpetrating
domestic violence and followed the investigator's recommendation, granting the father
sole legal and primary physical custody of the child. The mother, on appeal, challenges
this decision, arguing that the evidence did not support a conclusion that the statutory
presumption was overcome because the father never received any treatment or therapy.
We conclude that the trial court could lawfully consider the expert
testimony that the father was not suited for a batterers' intervention program when
deciding whether the statutory presumption against awarding him custody was
overcome. We also conclude that the court did not clearly err or abuse its discretion in
its consideration of the child's best interests. We therefore affirm the trial court's
custody decision.
II. FACTS AND PROCEEDINGS
A. Facts
1 Ten years later they became
Joy B. and Everett B. were married in 1998.
1 We use pseudonyms to protect the parties' privacy.
-2- 7417
----------------------- Page 3-----------------------
the parents of twins, one of whom died of Sudden Infant Death Syndrome at only 21
days old.
The marriage was turbulent. Joy claimed that Everett was unfaithful and
that he committed acts of domestic violence; she later came to blame Everett for the
death of their child. Everett admitted to an affair but claimed that Joy abused him
emotionally and physically, once even hiring an assassin to kill him. The parties
separated in May 2014. Everett filed for divorce in December 2015, asking for shared
legal and primary physical custody of their child. Joy asked for sole legal and primary
physical custody.
B. Proceedings
In May 2016 the trial court held a hearing on temporary orders. The court
found that "it was more likely than not that [Everett] has a history of perpetrating
domestic violence," based on two occasions when Everett placed Joy in "reasonable fear
of bodily harm": in one incident he destroyed a child gate in front of Joy and the child,
but the other incident was not identified. The court held that under AS 25.24.150(j),
Everett could not have unsupervised visitation until he completed "an intervention
program for batterers and a parenting education program." The court awarded Joy
interimsolelegalcustody and primaryphysical custodyandlimited Everettto supervised
visitation.
Shortly thereafter Everett met with Lisa Hay, a licensed clinical social
worker, who performed an intake assessment for a batterers' intervention program. Hay
concluded that Everett was not a perpetrator of domestic violence but rather a victim, and
that he was therefore "not appropriate for our program." The court also appointed a
custody investigator, who filed a lengthy report based on her observations of the parents
and her review of records such as the parents' text messages and psychological
assessments. The investigator's conclusions mirrored those of Hay: Everett was
-3- 7417
----------------------- Page 4-----------------------
"passive and avoidant," whereas Joy was "aggressive and domineering" and "engaged
in long-standing patterns of battering through coercion, control, manipulation and
domination over [Everett] physically and psychologically." The investigator found that
thesebehaviors prompted concerns about thechild's "current well-being and whether his
needs are being met." She recommended that Everett have sole legal and primary
physical custody of the child and that Joy have "supervised weekly Skype visits" and
enroll in cognitive behavioral therapy.
Trial was held over several days in early 2018. Joy and Everett both
testified, along with Hay, the custody investigator, Joy's retained expert in custody
investigations (who critiqued the custody investigator's report), Everett's current
domestic partner, an acquaintance of Joy's, and a psychologist who had evaluated
Everett's mental state on the custody investigator's referral. The court memorialized its
decision in a summary order that largely accepted the custody investigator's
recommendations, awarding Everett sole legal and primary physical custody and giving
Joy supervised visits while ordering her to enroll in cognitive behavioral therapy.
The court more fully explained its decision in a later final custody order.
The court declined to change its interim finding that Everett had perpetrated domestic
violence; however, it found that "[Everett's] breaking the baby gate was 'situational
violence' and not pattern violence" and that Joy, on the other hand, was a "perpetrator
of domestic violence" through "intimate partner stalking behaviors" and "ongoing
harassment behaviors" designed to give her "coercive control" over both Everett and the
child. The court found by a preponderance of the evidence that Everett had "overcome
the rebuttable presumption that previously prohibited a custody award to him," based on
the facts that "[Everett] was not recommended for [the] DV batterers['] program," "he
does not engage in substance abuse," and "the best interests of the child require his
participation as a custodial parent."
-4- 7417
----------------------- Page 5-----------------------
Joy appeals. She challenges the court's decision that Everett overcame the
statutory presumption against awarding him custody, its decision that awarding custody
to Everett was in the child's best interests, and its decision to condition her unsupervised
visitation on the substantial completion of mental health treatment.
III. STANDARD OF REVIEW
The trial court has broad discretion in child custody matters, and its
decision "will be set aside only if the entire record demonstrates that the controlling
findings of fact are clearly erroneous or that the trial court abused its discretion." 2 "A
finding of fact is clearly erroneous when this court is left with a definite and firm
3
conviction that the trial court has made a mistake." "Abuse of discretion is established
if the trial court considered improper factors in making its custody determination, failed
to consider statutorily mandated factors,orassigneddisproportionateweightto particular
4
factors while ignoring others."
"Whether the [trial] 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."5 We review de novo whether a superior court's
findings satisfy statutory requirements."6
2 Hamilton v. Hamilton, 42 P.3d 1107, 1111 (Alaska 2002).
3 Id.
4 Id.
5 Moeller-Prokosch v. Prokosch, 27 P.3d 314, 316 (Alaska 2001).
6 Timothy W. v. Julia M., 403 P.3d 1095, 1100 (Alaska 2017) (quoting
Dale H. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 235 P.3d
203, 210 (Alaska 2010)).
-5- 7417
----------------------- Page 6-----------------------
IV. DISCUSSION
A. The Trial Court Did Not Clearly Err By Finding That Everett
RebuttedTheStatutoryPresumptionAgainst AwardingHimCustody.
Alaska Statute 25.24.150(g) imposes "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." Subsection (h) of the
statute provides that "[t]he presumption may be overcome" if three conditions are met:
(1) "the perpetrating parent has successfully completed an intervention program for
batterers, where reasonably available"; (2) "the parent does not engage in substance
abuse"; and (3) "the best interests of the child require that parent's participation as a
custodial parent because the other parent is absent, suffers from a diagnosed mental
illness that affectsparenting abilities,or engages insubstanceabusethat affectsparenting
abilities, or because of other circumstances that affect the best interests of the child."
These three conditions for overcoming the presumption must be proven by a
7
preponderance of the evidence.
1. The trial court did not err by relying on evidence that Everett
had applied for entry to a batterers' program but was found
unsuited for it.
Following the custody trial the court reaffirmed its earlier determination
that Everett had a history of perpetrating domestic violence; this kept in place the
statutory presumption against awarding him custody. The custody investigator had
recommended that the court apply the statutory analysis governing situations in which
both parents have histories of perpetrating domestic violence; in such circumstances the
court should award custody "to the parent who is less likely to continue to perpetrate the
7 AS 25.24.150(h).
-6- 7417
----------------------- Page 7-----------------------
violence and require that the custodial parent complete a treatment program," or, if
necessary, award custody "to a suitable third person." 8 But the court declined to find,
"at this time, that [Joy] has a history of perpetrating domestic violence." Instead, the
court found that Everett had met the three conditions necessary for overcoming the
statutory presumption. The court reasoned that (1) "[Everett] was not recommended for
[adomesticviolence]batterers[']program,"(2) "hedoesnot engage in substanceabuse,"
and (3) "the best interests of the child require his participation as a custodial parent."
Joy argues that the court's finding on the first element - that Everett had
not been recommended for a batterers' program -failed to satisfy the element's express
requirement: successful completion of "an intervention program for batterers, where
9 She notes that when deciding interim custody, the court had
reasonably available."
"ordered [Everett] to complete a batterer[s'] program and a parenting education
program" before he could have unsupervised visitation, but "[h]e did neither." The
question we must decide is whether the court could lawfully conclude that Everett
satisfied the presumption's first condition with evidence that he asked to be admitted to
a batterers' program but, having been examined by an expert as part of the intake
process, "was not recommended for" the program because he posed no risk of
committing domestic violence in the future.
In Stephanie F. v. George C. we held "that the rebuttable presumption in
AS 25.24.150(g) may be overcome by means other than the completion of an
intervention program for batterers."10 We reached this conclusion after close analysis of
the statutory language and legislative history: the statute says that the presumption "may
8 AS 25.24.150(i).
9 AS 25.24.150(h).
10 270 P.3d 737, 753 (Alaska 2012).
-7- 7417
----------------------- Page 8-----------------------
11
be overcome by completing an intervention program for batterers," and the legislature
omitted potentially limiting language such as "shall be overcome only," as used in the
12 In Stephanie F., much like here, the
Louisiana statute on which Alaska's was based.
husband'stherapist testifiedthat"traditionalbatterers'interventiongroupsessionswould
be 'contraindicated' in [the husband's] case and 'could be more detrimental than
productive.' "13 The husband had, however, completed "twelve weeks of one-on-one
therapy," during which "he made significant progress to 'understand and change his
behavior[]' and improve his empathy skills," though the superior court found that this
counseling "was not comparable to the completion of a batterers' intervention
program."14 We remanded the case for the superior court to determine "whether the
counseling was sufficient to rebut the statutory presumption."15
In this case the court found that Everett's attorney had referred him to
LEAP, Inc., "a state-approved alternative to violence program," "to do an intake
assessment to determine if he would be appropriate for their batterers['] intervention
program." Everett accordingly went to LEAP's offices and asked to be admitted to the
"Alternatives to Violence program." He was then professionally evaluated by Hay, the
program's executive director and a licensed clinical social worker, who at trial "was
qualified as an expert in the area of behavioral risk assessment evaluations for men and
women related to the LEAP[,] Inc. Program." Hay evaluated Everett using a variety of
11 AS 23.30.150(g) (empahsis added).
12 Stephanie F. , 270 P.3d at 752-53 (emphasis in original) (quoting Louisiana
Revised Statute 9:964(A)).
13 Id. at 754.
14 Id.
15 Id.
-8- 7417
----------------------- Page 9-----------------------
testing techniques, including a "Behavior Inventories" assessment, an Adverse
Childhood Experiences Study questionnaire, and an Ontario Domestic Abuse Risk
Assessment. She also relied on interviews of Everett, Joy, Everett's current girlfriend,
and a co-worker and reviewed several years of Everett's private journal entries. Hay
determined that Joy was a highly controlling and abusive partner in the marriage,
whereas Everett was largely passive and fearful. Finding that Joy was the perpetrator of
domestic violence in the relationship through "psychological and emotional abuse," Hay
concluded that "[Everett] was not appropriate for the batterer[s'] intervention program
male offenders group, because he was a victim of domestic violence and would be
eligible for counseling." The court specifically found that Hay's LEAP report "was
credible and was an appropriately conducted behavioral risk assessment that once
completed confirmed [Hay's] initial assessment that [Everett] was not the perpetrator of
domestic violence."
The custody investigator's report reached much the same conclusions: that
Joy engaged in "intimate partner stalking behaviors which [are] a form of domestic
violence" as well as "ongoing harassment behaviors" that were "accusatory, blaming,
insulting, shaming, belittling, and threat[en]ing." The court agreed with the
investigator's conclusion that Joy exercised "a form of coercive control" over Everett
that "amounted to mental and emotional abuse" of both Everett and the child and that this
made Joy a "perpetrator of domestic violence."
The court qualified its discussion of domestic violence on Joy's part,
however. While it found that Joy had "engaged in coercive psychological abuse," the
court found that "the claims of physical abuse were [not] corroborated." Observing that
"the parties [had] not presented the [c]ourt with argument that [Joy's] psychological
abuse alone amounts to a history of perpetrating domestic violence," the court concluded
that it therefore could not "find that [Joy] has a history of perpetrating domestic
-9- 7417
----------------------- Page 10-----------------------
violence." We note the apparent conflict between this finding and the court's earlier
agreement with the investigator that Joy was a "perpetrator of domestic violence," based
on conduct that was "ongoing," "during the relationship and continuing afterwards," and
"over time . . . amounted to mental and emotional abuse towards both [Everett and the
child]." If Joy was a "perpetrator of domestic violence," then the court's findings may
support the conclusion that her conduct amounted to "a history of domestic violence."
But the court did not analyze Joy's stalking or "harassment behaviors" in the context of
16 We consider it
any specific statutes by which domestic violence is defined.
unnecessary to do so either, because we find no error in the trial court's conclusion that
Everett rebutted the presumption that he could not be awarded custody.
We do not read the first condition for overcoming the
presumption - successful completion of "an intervention program for batterers" - as
intending to require an empty exercise. The purpose of the presumption is "to protect
children from potentially adverse custody determinations," specifically "to decrease the
likelihood that children [will] be placed in the custodial household where domestic
violence exists."17 Here, the evidence supports the trial court's finding - based on the
opinions of an expert in batterers' programs and a custody investigator, both of whom
the court specifically found credible - that Everett poses no threat of committing
16 AS 25.90.010 provides that in Title 25, "domestic violence" has the
meaning given in AS 18.66.990, which defines the term to include crimes against the
person, burglary, criminal trespass, arson, criminal mischief, terrorist threats, violating
a protective order, harassment, and cruelty to animals. We recognize that the definition
of domestic violence used by a therapist to determine whether someone might benefit
from a batterers' intervention program may differ from that used by a court based on the
governing law.
17 Williams v. Barbee, 243 P.3d 995, 1001 & nn.25-26 (Alaska 2010) (citing
House Bill 385, 23d Leg., 2d Sess. (2004) and supporting legislative history).
-10- 7417
----------------------- Page 11-----------------------
domestic violence and therefore did not need, and would not in fact benefit from, a
batterers' intervention program. Importantly, he sought to enroll in the program as
directed but was found to be ineligible. The statutory purpose was thus satisfied. We
conclude that under these circumstances the court did not err in deciding that the
presumption had been "overcome by means other than the completion of an intervention
program for batterers," as contemplated by Stephanie F. 18
2. A court may consider the nature of the domestic violence when
deciding whether the presumption against awarding custody to
the perpetrator has been overcome.
Joy contends that the trial court impermissibly minimized Everett's history
of perpetrating domestic violence in order to lower the bar he had to cross to rebut the
presumption. She contends that the court relied too heavily on the testimony and reports
of Hay and the custody investigator, who "substitut[ed] their own definition of what it
means to have a history of perpetrating domestic violence" for the statutory language by
concluding that Everett's acts were "situational" and therefore not that serious. But we
have repeatedly recognized that trial courts may consider the "situational" nature of
domestic violence when deciding whether the presumption applies and whether it has
been overcome.
In Stephanie F., for example, the superior court accepted an expert's
testimony that the husband's acts of domestic violence amounted to "situational violence
as [a] result of a high conflict" rather than " 'a pattern of intimate partner violence[,]'
which [the expert] defined as a 'pattern of control, [or] intimidation, often solidified
through some type of violence by one partner over the other.' "19 We held that it was
appropriate for the court to consider the violence's situational nature when "determining
18 270 P.3d at 753.
19 Id. at 749.
-11- 7417
----------------------- Page 12-----------------------
whether [the husband] overcame the statutory presumption and gauging the risk of future
violence. This difficult and important assessment is one best made by the trial court. "20
In Mallory D. v. Malcolm D. the superior court found that each parent had
committed two acts of domestic violence and therefore each had "a history of domestic
violence" as defined in AS 25.24.150(h).21 Under these circumstances -when the court
finds that "both parents have a history of perpetrating domestic violence" - the
controlling statute is AS 25.24.150(i), which requires the court to "award sole legal and
physical custody to the parent who is less likely to continue to perpetrate the violence."
The superior court in Mallory D. determined, however, that neither party was less likely
than the other to commit further acts of violence; it found that the parents' acts were
"equal," situational, and unlikely to recur.22 It determined, therefore, that the
presumption against an award of custody did not apply to either parent and that it was
"free to fashion a custody decree that meets the best interests of the children."23 We saw
24 In so
no clear error in the court's findings of fact and agreed with its legal analysis.
doing we "emphasize[d] that the trial court must take a qualitative approach when
considering the nature and extent of the domestic violence committed by both parents
rather than merely counting the number of domestic violence occurrences to determine
20 Id. (emphasis added); see also id. at 754 (noting that trial court "is entitled
to significant deference" when determining that acts of domestic violence "were not tools
used to effectuate a strategy of control, overbearing power, or manipulation" but rather
"were acts of situational violence and unlikely to reoccur").
21 290 P.3d 1194, 1206 (Alaska 2012).
22 Id. at 1206-07 & n.28.
23 Id. at 1206 (quoting trial court decision).
24 Id. at 1206-07.
-12- 7417
----------------------- Page 13-----------------------
whether the rebuttable presumption in AS 25.24.150(g) applies."25 We observed that,
for example, "two heinous acts" by one parent should not be weighed the same as "two
comparatively minor incidents" by the other parent when determining whether the
26
presumption applies.
We conclude that the trial court did not err when it considered the
seriousness of Everett's incidents of domestic violence - and specifically their
situational nature - in the context of deciding whether he had overcome the
presumption against awarding him custody of the parties' child.
B. The Trial Court Did Not Clearly Err Or Abuse Its Discretion By
Determining That It Was In The Child's Best Interests To Be In
Everett's Sole Custody.
Joy also challenges the trial court's determination that it was in the child's
best interests to award Everett sole legal and primary physical custody; she highlights
the facts that she was the child's primary caregiver up to the time of trial and that
awarding custody to Everett in California would uproot the child from"his lifetime home
in Kotzebue." Joy again contends that the trial court relied too heavily on the
recommendations of Hay and the custody investigator, particularly their conclusions
"that [Joy] was a perpetrator [of] domestic violence and [Everett] the victim," findings
that "carried over into the court['s] consideration of the [other] best interest[s] factors."
25 Id. at 1207.
26 Id. ; see also Dennis Q. v. Monika M. , No. S-15084, 2014 WL 1888270, at
*7 (Alaska May 7, 2014) (noting in context of AS 25.24.150(i) - applicable when "both
parents have a history of perpetrating domestic violence" - that "the severity of the
[parents'] assaults is a reasonable factor for making a difficult prediction about future
behavior" and "is especially appropriate" in light of findings that wife's violence was
"situational to therelationship and circumstances"whereas husband's was "typical ofthe
violence seen where a person is using force to exert power and control over another").
-13- 7417
----------------------- Page 14-----------------------
When making an award of child custody, courts are required to consider the
best interests factors listed in AS 25.24.150(c):
(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 other
members of the household directly affects the emotional or
physical well-being of the child;
(9) other factors that the court considers pertinent.
"In awarding custody the court may consider only those facts that directly affect the
-14- 7417
----------------------- Page 15-----------------------
27
well-being of the child."
The trial court considered each of these best interests factors in turn. Joy
argues that the court "overlooked pertinent factors," "considered improper factors[,] . . .
and assigned disproportionate weight to particular factors." Her arguments directly
challenging the court's findings on domestic violence are answered in the discussion
above. We analyze her other arguments in turn.
Joy challenges the trial court's agreement with the custody investigator that
the"dynamic"of"parental alienation"was "apparent in thiscase"; this finding supported
the court's conclusion in its discussion of factor (6) that Joy was less willing than Everett
to foster the child's relationship with the other parent. Joy contends that there is no
evidence to show that the child "is alienated from either parent"; she argues that the child
"was happy to see his father" and "was at ease in the company of both parents." The trial
court acknowledged the absence of expert testimony on this issue, but it reasoned that
"the record presents a mound of evidence from which the [c]ourt can fairly easily draw
conclusions about the relationship that are characteristic of the parental alienation
dynamic." The court cited the facts that Joy "has prevented and frustrated [Everett's]
visitation in the past"; that she "has been controlling of how visits with [Everett] occur,"
limiting contact to "email, not phone or video [S]kype"; that she "sees her relationship
with [Everett] as a package deal, i.e., 'If you want me, you get son too, if you don't want
me, then you don't get son either' "; that "numerous texts and emails" indicate her
"angry view of [Everett]" and her negative comments about his contact with the child;
and that despite "her [expressed] desire to foster a relationship between father and son,
[she] effectively makes visitation and interactions between father and son difficult."
These findings of fact are supported by Everett's trial testimony, the credibility of which
27
AS 25.24.150(d).
-15- 7417
----------------------- Page 16-----------------------
28
was for the trial court to determine, as well as the LEAP report and the custody report.
Given its underlying factual findings, which are not clearly erroneous, the court's use of
the diagnostic label "parental alienation" to summarize its thoughts on the issue does not
persuade us that it abused its discretion when weighing factor (6).
Joy argues that the trial court also erred when weighing factor (7) - "any
evidence of domestic violence, child abuse, or child neglect in the proposed custodial
household or a history of violence between the parents" - because it considered what
it termed Joy's "stalking type behavior." Joy argues that her behavior does not meet the
definitions of "domestic violence, child abuse, or child neglect" and that there was no
29 But as explained
showing that it "directly affect[ed] the well-being of the child."
above, the court made findings - supported by the evidence - that Joy's behavior
interfered with the relationship between Everett and the child. And even if Joy's
behavior did not amount to "domestic violence, child abuse, or child neglect," the court
was entitled to consider it under the catch-all factor of AS 25.24.150(c)(9): "other
factors that the court considers pertinent." We see no error in the court's consideration
of Joy's "stalking type behavior" in reaching its custody decision.
Joy also argues that the trial court erred in its discussion of factors (1) and
(2) - the child's needs and the parents' "capability and desire . . . to meet these
needs" - when it criticized Joy "for not always obtaining the medical care the custody
investigator believed the child needed." Joy contends that "many of the alleged failings
occurred while the parents were living together, making it difficult to assign
responsibility to only the mother." But in fact a majority of the incidents identified by
28 Ebertz v. Ebertz , 113 P.3d 643, 646 (Alaska 2005).
29
See AS 25.24.150(d) ("In awarding custody the court may consider only
those facts that directly affect the well-being of the child.").
-16- 7417
----------------------- Page 17-----------------------
the custody investigator, involving recommendations for circumcision and a
tonsillectomy, occurred in 2015 and 2016, after the couple separated and while the child
was in Joy's sole care. We therefore see no clear error in the court's assignment of
responsibility to her.
Joy takes issue in a sentence or two with several other aspects of the court's
best interests determination. She asserts that the court "gave no weight to [Everett's]
failure to provide financial support." It is true that the court did not address this issue
directly, but one exhibit at trial was Everett's record of child support payments, about
which he was questioned briefly. He admitted that he was in arrears but testified that he
was working on getting caught up. There is nothing in the record or in Joy's cursory
mention of the issue that makes us believe the court should have given it significant
weight.
Joy argues that the trial court "ignored [Everett's] lack of contact with his
son" and that his failure to maintain closer contact despite Joy's perceived resistance
demonstrates a lack of interest. The court did not ignore these issues; rather, it grappled
with them in the course of reaching its decision. The court noted that "[e]valuating
[Everett's] desire to raise [the child] is initially hard since he has not made many attempts
to visit his son, though there have been apparent difficulties in communicating with
[Joy]." The court expressly disagreed with Joy that Everett's failure to visit was because
he did not want to spend time with the child: "The [c]ourt disagrees with this
characterization in light of the evidence that [Everett] had made attempts to visit his son
in Kotzebue and in Maine, but these efforts [were] not always met with support . . . [and]
may have been difficult to undertake in the face of a domineering wife that he perceived
as having apparent control of their son's availability." The court concluded that the
evidence "indicates that [Everett and the child] have a rapport and familiarity that can be
-17- 7417
----------------------- Page 18-----------------------
built upon with more time and opportunity, free from [Joy's] control and influence." We
see no clear error in these findings of fact.
Joy also argues that the court ignored how well the child was doing in
school and in the Kotzebue community while in her care. But the court did recognize
this, observing that "[Joy] has generally been successful in raising" the child and "has
generally demonstrated capability and desire to meet most of [the child's] needs." The
court's concernwasfor "[Joy's] capacity to emotionally support"thechild; it determined
that "the current home in Kotzebue with [Joy] is not suitable for [the child] at present,
since his emotional needs are not being met and he has experienced, and continues to
hear and see firsthand, [Joy's] negative views towards [Everett]." Weighing the
importance of the child's social and educational needs on the one hand and his emotional
30 The court did
needs on the other is a matter committed to the trial court's discretion.
not abuse that discretion by prioritizing the child's emotional needs over others.
Finally, Joy contends that the trial court did not "meaningfully consider[]
the emotional impact [that] a move would have on a child required to move thousands
of miles from the only home he has known to live with a parent who has been absent
from his life for three years." But again, the court did seriously consider this aspect of
the situation, recognizing that the child "has lived in the marital home throughout his
life." The court concluded, however, that maintaining continuity was less important than
meeting the child's emotional and mental needs, which could best be accomplished by
30 See Michele M. v. Richard R. , 177 P.3d 830, 834 (Alaska 2008) (finding
no abuse of discretion in superior court's "emphasis on [the child's] education,
identifying it as one of [the child's] greatest needs under AS 25.24.150(c)(1)").
-18- 7417
----------------------- Page 19-----------------------
a change in custody. We see no clear error in the court's findings related to this issue or
any abuse of discretion in its weighing of the child's needs.
C. The Court Did Not Abuse Its Discretion By Placing Conditions On
Joy's Visitation.
Finally, Joy contends that the superior court abused its discretion when it
accepted the custody investigator's recommendation that a change of custody was
necessary until Joy was
able to obtain services to cope with her own issues[,] . . . to
gain a better understanding of her own behaviors and faulty
thinking, to take responsibility for her own vindictive actions
that have negatively impacted the child, to learn newmethods
of resolving her emotions, to learn appropriate
communication that disengages from conflict, and to be
willing to encourage the child's relationship [with] his father
and not engage the child in disparaging comments or
conduct.
The court was much more specific about the contemplated services in a summary order
on child custody, in which it ordered, as a condition of unsupervised visitation, that Joy
enroll "in individual cognitive behavioral therapy (CBT) . . . to process issues including,
but not limited to, the loss of the parties' [other] child . . . ; to find ways to cope with the
loss of the marriage and the issues involved in the marriage; the use of
manipulation/coercion/threats/controlinrelationships/divorce/parenting,and appropriate
communication with the child about [Everett]." The court continued: "The therapist
should be well versed in CBT and have an in-depth understanding of personality
disorders, high conflict divorce, and coercive control battering within intimate partner
relationships."
Joy argues that the sole source of this detailed order was the report of the
custody investigator, whose only expertise was in custody investigations and who
admitted that she was unqualified to make a psychological diagnosis. She argues that the
-19- 7417
----------------------- Page 20-----------------------
court therefore erred when it relied on the investigator's analysis of Joy's "mental
condition" and adopted the investigator's specific recommendations for treatment.
The trial court has broad discretion when formulating conditions on a
31 We have affirmed a trial court's decision to condition
parent's exercise of visitation.
unsupervised visitation on completion of a psychological evaluation when based on a
finding that the father was otherwise "likely to surround his son with 'an atmosphere of
conflict, paranoia, upset, anger[,] and stress.' "32 Here, the custody investigator testified
that she was not making any psychological diagnosis but rather was drawing on her
experience to make a recommendation she thought might be of benefit to the family.
Joy's argument that the investigator was unqualified to recommend a specific type of
therapy is conclusory and does not persuade us that the trial court abused its broad
33
discretion by incorporating the recommendation into its custody order.
V. CONCLUSION
We AFFIRM the trial court's decision on custody.
31 Pasley v. Pasley , 442 P.3d 738, 754 n.81 (Alaska 2019); Yelena R. v.
George R. , 326 P.3d 989, 1002 n.36 (Alaska 2014) ("[W]here a trial court makes the
required findings, whether those findings support a particular restriction on visitation is
left to the trial court's discretion.").
32 Sagers v. Sackinger, 318 P.3d 860, 866-67 (Alaska 2014) (affirming trial
court's requirement that father undergo psychological evaluation before having
unsupervised visitation).
33 Joy also argues that the trial court's condition restricting her to supervised
visitation was unsupported by the evidence. But because she first raises the argument
in her reply brief, we deem it waived. See Barnett v. Barnett, 238 P.3d 594, 603 (Alaska
2010). We do note that the trial court clearly laid out a plan by which Joy could achieve
unsupervised visitation: the "substantial completion" of its recommendations for a
psychological evaluation and individual cognitive behavioral therapy. See Georgette
S.B. v. Scott B., 433 P.3d 1165, 1172 (Alaska 2018).
-20- 7417
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
