| 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. Alisa Burns v. John Everett Burns (6/26/2020) sp-7462
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
ALISA BURNS, )
) Supreme Court No. S-17394
Appellant, )
) Superior Court No. 3AN-17-06683 CI
v. )
) O P I N I O N
JOHN EVERETT BURNS, )
) No. 7462 - June 26, 2020
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Dani Crosby, Judge.
Appearances: John J. Sherman, Mendel Colbert &
Associates, Inc., Anchorage, for Appellant. John E. Burns,
pro se, Anchorage, Appellee.
Before: Bolger, Chief Justice, Winfree, Stowers, Maassen,
and Carney, Justices.
BOLGER, Chief Justice.
I. INTRODUCTION
A mother appeals a final order modifying custody of her three children.
She argues that the modification was to punish her and was not based on the best
interests of the children. She asserts that the superior court clearly erred in finding that
she misrepresented information to third parties, including her son's medical providers.
She additionally argues that she was denied due process because the superior court did
----------------------- Page 2-----------------------
not give her expert the opportunity to defend his methodology once the court determined
that his psychological evaluation was outside the scope of its expectations. And she
asserts that the superior court erred in assigning no weight to her expert's evaluation in
making its credibility determinations.
We conclude that the modification was not made to punish the mother. The
superior court based its underlying findings on the children's best interests. And the
superior court did not clearly err in finding that the mother misrepresented information
to third parties. We also conclude the mother was provided a meaningful opportunity
to be heard. It was within the superior court's discretion to decide how much weight to
assign the psychological evaluations in making its credibility determinations. We
therefore affirm the superior court's order modifying custody.
II. FACTS AND PROCEEDINGS
Alisa and John (Jay) Burns married in California in 2006. Alisa and Jay
had three children during their marriage: a daughter born in 2009, a son born in 2010,
and a daughter born in 2014. Alisa and Jay separated in 2017 and divorced in early 2018
in Anchorage.
Thesuperior court held an interimcustody hearing in September 2017, after
Alisa went on vacation with the children to New York, rented an apartment while there,
and requested interim custody on an expedited basis so that the children could start the
school year in New York. The court denied Alisa's request for interim custody, and the
children returned to Anchorage until a final custody hearing in December 2017. In a
"very close custody case," the court awarded joint legal custody to Alisa and Jay, but
gave Alisa primary physical custody and permission to move with the children to New
York. The court ordered that Jay have visitation over summers and certain holidays and
that he "have frequent, open, and age-appropriate telephone, texting, and Facetime
contact with the children."
-2- 7462
----------------------- Page 3-----------------------
In April 2018 Jay filed a motion requesting that the court vacate its findings
of fact and conclusions of law after Jay and Alisa's son was hospitalized for behavioral
issues in New York. The court exercised its discretion and deemed Jay's motion a
motion for custody modification; however, it required Jay to file a supplemental motion
reframing the argument under the proper modification standard. Alisa was given the
opportunity to file an opposition.
A. TheHealthDiscoveryProtectiveOrderAndPsychologicalEvaluations
The mental health and credibility of the parents became a point of
contention, as both Alisa and Jay made allegations about why mental health,
manipulative behaviors, and untruthfulness made the other parent unfit to care for the
children. Alisa requested, and was granted, a protective order barring Jay "from
propounding discovery relating to [Alisa's] past mental or physical health." Instead, in
the protective order, the superior court ordered that each party "submit to psychological
evaluationfor thepurposeofidentifyingany current psychological conditions/issues that
could affect the parent's capacity to care for the children." (Emphasis added.)
Duringastatus hearing, Alisaexplainedthat shewas having troublefinding
a psychologist who would accept her health insurance to administer the evaluation, that
she was not entirely clear on what the court would like evaluated, and that the evaluation
might not be complete prior to the custody modification hearing. The court clarified that
it was interested in an evaluation of her mental health, particularly addressing the
allegations that she suffered from borderline personality disorder, depression, or post-
traumatic stress disorder: "Because the mental health of the children, particularly [the
son] actually, is really critical here . . . ."
The court indicated that if Alisa could not obtain an evaluation before the
September hearing date, then both evaluations could be submitted to the court post-
hearing without testimony or opportunities for cross-examination. The court also
-3- 7462
----------------------- Page 4-----------------------
suggested cross-examining the evaluators telephonically after the psychological
evaluations were completed.
By the final status hearing it was apparent that Alisa's evaluation would not
be finished in time for the custody modification hearing. The court reasoned that in
fairness both evaluations should be handled in the same manner, and Alisa and Jay
agreed to submit their evaluations post-hearing for the court to consider without further
testimony or cross-examination. Alisa submitted her psychological evaluation in
October 2018. The evaluation "was based on a review of materials provided by both
parties' counsel, an interview with Alisa as well as one of her therapists, a series of
psychometric tests, and a home visit."
B. Alisa's New York Petition To Modify Custody Or Visitation
While these proceedings were underway in Alaska, Alisa had filed a
petition to modify custody or visitation with the New York Family Court in April 2018.
Alisa requested a temporary, emergency protective order, alleging that Jay's
"manipulations" were "exacerbating the children's serious mental health issues,"
particularly their son's. This temporary protective order was granted. The Alaska and
New York courts discussed Alisa's petition and the protective order, and decided on
"truncated summer visitation" between Jay and the children. Jay's Skype and telephone
communication with the children was also stopped for approximately two months as a
result of this protective order.
C. The Custody Modification Hearing
The Alaska superior court held a two-day custody modification hearing in
September 2018. As noted by the court, Jay and Alisa "present[ed] diametrically
opposed testimony" on many topics. They provided conflicting testimony on the impact
of the move on their younger daughter's potty training and their older daughter's
-4- 7462
----------------------- Page 5-----------------------
adjustment to her new school. The bulk of the testimony, however, focused on their
son's mental health and hospitalization.
In Jay's testimony about his son's mental health, Jay noted that during
summer visitation, his son demonstrated "separation anxiety"behaviorsthathehad never
witnessed before the New York move. Jay cited several examples of Alisa allegedly
providing inaccurateinformationto emergencyroompersonnel and doctorstreating their
son; this included providing inaccurate information about the family medical history,
misrepresenting their son's behavioral history, and mischaracterizing the reason he
repeated kindergarten. Jay asserted that because Alisa "l[ied] to doctors," their son did
notreceiveappropriatementalhealth treatment and was prescribedmedications "he's not
supposed to be on."
Jay further testified that Alisa provided low-quality communication
opportunities between himand the children during Skype and telephone calls, in contrast
to the "no distractions" communication time he provided for Alisa during his summer
visitation. Jay stated that there were "[c]onstant distractions" during the Skype calls and
that Alisa gave the children snacks and toys as if she were "trying to sabotage the
communication." Jay alleged Alisa provided inaccurate descriptions of various calls he
had with the children to get the protective order in New York and separate him from the
children.
Alisa testified on the second day of the custody modification hearing.
When asked about her son's mental health, she described his "anxiety and aggressive
behavior towards his sisters." Alisa refuted the notion that his behavioral issues
developed after the New York move. Instead, she testified that she had two emails from
her son's former teacher in Alaska, which were entered as an exhibit, that expressed his
teacher's concern that her son was "breaking things and throwing things" and "chasing
students in the classroom." When questioned by the court about her son's behaviors
-5- 7462
----------------------- Page 6-----------------------
prior to the hospitalization, Alisa described him making a comment about self-harm,
trying to grab a knife from her hand while she was cooking, and threatening to hurt her.
Alisa stated that she "first heard from [her son] about the stress of the
conversations with his dad" when she put her son in therapy to cope with the stress of
the divorce and move. She testified that Jay asked for privacy during the calls, so she
initially provided the children with headphones in their bedrooms. However, she stated
that she began noticing a pattern of her son "coming out of the call sometimes crying or
really agitated." She characterized Jay as pressuring the children to use Skype. Alisa
identified Jay's calls with her son as a "stressor[]," and she alleged that he "shut down"
and was "more aggressive" after the two weeks of summer visitation with Jay. Alisa
testified that Jay focused on "negative thing[s]" and said "things that they're too young
to be hearing at all" about the divorce and custody.
When questioned about inconsistencies in the medical records surrounding
her son's hospitalization, Alisa explained that what she told medical personnel did not
always match what was transcribed in the records and that any inaccuracies were
unintentional.
D. The Superior Court's Findings Of Fact And Conclusions Of Law
Supporting Custody Modification
The superior court issued written findings of fact and conclusions of law
in March 2019. The court explained it "consider[ed] primarily the needs of the children,
the parents' respective abilities to meet the children's needs, and [Alisa's] ability to
foster a relationship between the children and [Jay]." The court noted that its initial
December 2017 custody determination had been "a very close custody case," and that
in granting Alisa primary physical custody to move with the children to New York "it
emphasized that it was going to be very important that [Alisa] support an open and
-6- 7462
----------------------- Page 7-----------------------
loving relationship between the children and their father, consistent with
AS 25.24.150(c)(6)."
In discussing the children's needs, the court found that since the move to
New York, the son "had begun having significant behavioral issues, including assaultive
behavior toward his mother and attempting to hurt himself." And it stated there was "no
dispute" that the son "has experienced mental health issues in New York," was
hospitalized for a "substantial period," and "has generally been having a very difficult
time since moving to New York." Therefore the court found that the son's "emotional
needs are particularly demanding and important at this time." The court noted that the
younger daughter seemed "generally happy," and the older daughter "doesn't like the
limiting nature of the phone calls" with Jay following issuance of the New York
protective order and "doesn't seem to be adjusting terribly well."
The court examined how Alisa handled her son's mental health treatment
in New York. The court found that Alisa did not provide complete and accurate
information to the emergency room personnel and doctors treating her son. And it
stated: "[I]n terms of the children's physical, emotional, mental and social needs as well
as the capability and desire of each parent to meet those needs, as set out in
AS 25.24.150, (c)(1) and (2) . . . [Alisa's] repeated misinformation and
miscommunications provided to third parties, including medical care providers, has the
potential to pose unacceptable risks to [her son]." The court found that Jay "is capable
of caring for the children, including [his son's] unusual needs at this time, which weighs
this factor slightly more in [Jay's] favor."
While considering Alisa's ability to foster a relationship between the
children and Jay, the court found that a few days after Jay filed his first motion seeking
a custody modification, Alisa filed a petition in New York seeking a family protective
order. The court noted that "though it was appropriate for [Alisa] to be allowed to access
-7- 7462
----------------------- Page 8-----------------------
the New York courts for an emergency protective order, her representations to that court
should have been accurate." In seeking the protective order, Alisa represented to the
New York court that Jay intimidated, manipulated, and emotionally abused the children
through their telephone and Skype calls. The court found that "the tenor of Jay's
communication with his children was loving,engaging,creativeand appropriate, and not
at all like the controlling, intimidating, or manipulative tenor which has been suggested
by Alisa." The court also found that Alisa did not accurately represent what occurred in
specific calls between Jay and the children.
The court explained the detrimental impact that the New York protective
order had on Jay's relationship with the children: "[B]ased in significant part" on Alisa's
misstatements, "Jay wasn't allowed to communicate with his children at all for two
months" and "only a truncated summer visitation between [Jay] and the parties' children
was permitted by the court." The court concluded that "overall, [Alisa] made multiple
misstatements, provided information that wasn't complete or was inaccurate, and in a
few instances simply not supported by the evidence or facts . . . that resulted in [Jay]
having less access to his children, which this court considers to be very important." As
a result, the court had "great concerns about [Alisa's] ability on an ongoing basis to
foster that open and loving relationship between the children and their father."
The court stated that it requested the psychological evaluations so it "could
better determine if one party or both had issues affecting the children that needed to be
addressed." The court reviewed the psychologist's report on Jay indicating that he was
suffering from "adjustment disorder," but it explained "[t]here was nothing in the report
saying that he suffered from any diagnosis that would cause this court to have great
concern." The court was "puzzled" by the psychologist's report on Alisa, explaining that
going "to her home to observe her with the children" was "unusual" and " 'outside the
box,' such that the court gave limited or no weight to that doctor's report." In its oral
-8- 7462
----------------------- Page 9-----------------------
findings, the court noted that it did not "take any negative implications . . . from the
report" on Alisa, and the court did not make any findings that Alisa was suffering from
a mental disorder. The court was, however, concerned about Alisa's inability to "set
aside her own interpretation" of Jay's behavior, which is "not consistent with reality,"
and questioned her ability to meet the children's needs.
The court granted Jay primary physical custody and noted that it "gave
serious consideration to placing legal custody solely in Jay" because of Alisa's "multiple
misrepresentations about the children to third parties, especially medical personnel," but
the court "hope[d] for better decisions going forward."
E. The Superior Court's Denial Of Alisa's Motion For Reconsideration
Alisa filed a motion for reconsideration, arguing that the court should have
allowed her "evaluator to support or explain his evaluation." Alisa alleged that "[w]ere
he given the opportunity, [Alisa's evaluating psychologist] could testify regarding his
process, his reasoning, and the basis for his conclusions." Alisa additionally argued that
the superior court had not considered any recent developments, which would be
appropriate given the "quickly progressing issues related to [their son's] mental health."
The superior court issued an order denying Alisa's motion for
reconsideration. First, the court noted that Alisa and Jay had stipulated that Alisa's
"psychological evaluation could be submitted post-hearing and that the court could
consider it without taking testimony from the evaluator." The court also acknowledged
that although it "did not place weight on [Alisa's] evaluation, it also did not find that
[Alisa] suffered from any particular mental disorder" and so "the evaluation is arguably
consistent with the court's decision." Secondly, the court explained that its "decision
was substantially based on the court's finding that [Alisa] has not fostered an open and
loving relationship between [Jay] and the children - this finding cannot be affected by
the passage of three months."
-9- 7462
----------------------- Page 10-----------------------
Alisa appeals.
III. STANDARDS OF REVIEW
"Trial courts have broad discretion in determining whether a proposed
1
child-custody modification is in the child's best interests." The trial court's "broad
discretion extends to its determination whether, following an evidentiary hearing, the
moving party has proven a substantial change in circumstances, meaning one that affects
2
the child's welfare." We "set aside the [trial] court's best interests determination only
if the trial court abused its discretion or if the fact findings on which the determination
3
is based are clearly erroneous."
When reviewing factual findings, we "conclude that a factual finding is
clearly erroneous if, based on a review of the entire record, the finding leaves us with a
definite and firm conviction that a mistake has been made; we may conclude a finding
4
is clearly erroneous even if there is some evidence in the record to support the finding."
We "give particular deference to those findings when . . . 'most of the trial evidence
consists of oral testimony.' "5
1 Rego v. Rego, 259 P.3d 447, 452 (Alaska 2011) (citing Ebertz v. Ebertz,
113 P.3d 643, 646 (Alaska 2005)).
2 Collier v. Harris, 377 P.3d 15, 20 (Alaska 2016) (citing Heather W. v. Rudy
R., 274 P.3d 478, 482 (Alaska 2012)).
3 Rego, 259 P.3d at 452 (citing Ebertz, 113 P.3d at 646).
4 Id.
5 In re Adoption of A.F.M. , 15 P.3d 258, 262 (Alaska 2001) (quoting Silvers
v. Silvers, 999 P.2d 786, 792-93 (Alaska 2000)).
-10- 7462
----------------------- Page 11-----------------------
"When determining the requirements of due process, we look to the test
enunciated by the United States Supreme Court in Mathews v. Eldridge ."6 "Not every
7 "[T]he
potential deprivation of protected interests results in a due process violation."
crux of due process is having a meaningful opportunity to be heard and represent one's
interests."8
IV. DISCUSSION
Alisa raises multiple arguments on appeal. Her first argument is that it was
a denial of due process for the court to "disallow additional evidence to support" her
expert's psychological evaluation report. She additionally asserts that the court erred in
giving "limited to no weight" to the report in making its credibility determination. Alisa
next argues that the court modified custody to punish her for perceived
misrepresentations, rather than advance the children's best interests. Her final argument
is that the court clearly erred in finding (1) that she misrepresented facts to third parties,
including medical personnel and the New York court, (2) that Jay's calls with the
children were largely loving and appropriate, and (3) that her description of Jay's calls
as manipulative and intimidating was inaccurate.
A. The Superior Court Did Not Deprive Alisa Of Due Process, Nor Did It
Err In Assigning Her Psychological Evaluation Little Weight.
Alisa argues that the superior court erred by ordering the parties to obtain
psychological evaluations "to resolve critical disagreements between the parties" and
then "excluding" her report, but making "substantial findings about the parties'
6 D.M. v. State, Div. of Family & Youth Servs. , 995 P.2d 205, 212 (Alaska
2000) (citing Mathews v. Eldridge , 424 U.S. 319 (1976)).
7 Id.
8 Dennis O. v. Stephanie O., 393 P.3d 401, 411 (Alaska 2017).
-11- 7462
----------------------- Page 12-----------------------
credibility in apparent reliance on [Jay's] report." Alisa asserts that the superior court
should have allowed her to call her evaluating psychologist to support the methodology
in his report before "excluding" her report. Alisa thus suggests that she was denied her
due process opportunity to be heard because the superior court's alleged lack of
consideration of her psychological evaluation report created an "evidentiary void"
regarding her credibility in making the custody modification.
Alisa specifically argues that it was a denial of due process for the court to
disallow additional evidence to support her psychological evaluation, and that by
agreeing "to submit this evidence for the court's consideration in the form of the reports
only," she did not waive the "opportunity to present evidence contained in [her] own
report." Alisa asserts that "[b]y preventing [her] from providing a foundation for her
expert's testimony and instead ignoring the testimony entirely, the court interfered with
Alisa's right to present evidence [that] the court had itself identified as necessary for the
case." As a result, Alisa argues, the superior court giving "no consideration" to her
"required psychological evaluation cannot be dismissed as immaterial or harmless."
9 "[W]e
"Due process requires a 'meaningful' opportunity to be heard."
typically identify due process violations in the custody context when a party has not had
notice of the consequences ofaparticular hearing and lacked adequate time to prepare."10
"When a party already has received the 'minimum' due process required, the party's
arguments about prejudice can be grounded in the realities of the process actually
9 Anderson v. Alaska Hous. Fin. Corp. , 462 P.3d 19, 30 (Alaska 2020)
(quoting Fuentes v. Shevin , 407 U.S. 67, 80 (1972)).
10 Weathers v. Weathers, 425 P.3d 131, 138 (Alaska 2018).
-12- 7462
----------------------- Page 13-----------------------
11
received and the outcome." A "party raising a due process objection must show that
[the party] has suffered actual prejudice." 12
We note the superior court did not make any adverse findings about Alisa's
mental health. We further note that Alisa's various assertions that the superior court
excluded, gave no consideration to, or ignored her report are inaccurate. The superior
court's written findings demonstrate it clearly considered Alisa's evaluation report. The
court stated it was confused by her evaluating psychologist's unorthodox methodology
of observing her in the home, and, accordingly, "gave limited or no weight to that
doctor's report." Contrary to her assertions, Alisa was not denied the opportunity to
present the information contained in her own report.
Alisa's due process argument is predicated on the idea that the superior
court made its credibility findings based largely on the psychological evaluations. She
asserts that the court relied on Jay's evaluation, but gave no weight to her evaluation
report, thereby unfairly favoring Jay in the credibility determinations. Alisa implies that
her case was harmed because the lack of weight given to her report undermined her
credibility and "a finding that a party lacks credibility infects all other findings."
Alisa's argument appears to assume that she suffered prejudice in the
credibility determination because her evaluator was not given an opportunity to defend
his methodology. The record, however, does not support this assumption. Instead, the
superior court explained that the reason it requested psychological evaluations was
because of the parties' "widely divergent views of the facts." But the superior court did
not use Alisa's evaluation report to resolve the parents' conflicting narratives.
11 Anderson , 462 P.3d at 33.
12
Regina C. v. Michael C., 440 P.3d 199, 205 (Alaska 2019) (alteration in
original) (quoting Moody v. Royal Wolf Lodge, 339 P.3d 636, 643 (Alaska 2014)).
-13- 7462
----------------------- Page 14-----------------------
After consideringalloftheevidencepresented -testimony, transcripts and
selected records of calls, and exhibits, including school reports, medical records, and
Alisa's filings in New York - the superior court made findings that Alisa provided
inaccurate and incomplete information to third parties on multiple occasions. In
explaining inaccuracies in the medical records, Alisa described it as "like a telephone
game where I was giving them as much information as I could to try to be helpful . . . and
some of it, you know, was changed." The superior court found that Alisa's explanation
for inconsistencies in the medical records was not "credible" and was "difficult to
believe." The court reasoned there were multiple inaccuracies in the medical records
because Alisa had made inaccurate statements, and it doubted that medical personnel got
it so "wrong" as to change one statement into a completely different statement.
Trial courts receive particular deference in evaluating oral testimony
because "[i]t is the function of the trial court, not of this court, to judge witnesses'
13 The superior court did not base its
credibility and to weigh conflicting evidence."
findings that Alisa made inaccurate representations on her suffering from a mental
illness, so even if Alisa's evaluator had defended his methodology, this would not
address the inaccuracies in her son's medical records or the "difficult to believe" aspects
of her testimony. Rather, her multiple misrepresentations to third parties, including the
New York court and her son's medical providers, undermined her credibility because
they indicated to the court that Alisa was unable to take an objective view of reality.
The superior court did not err in assigning "limited or no weight" to Alisa's
psychological evaluation report. And we conclude that the superior court did not deprive
Alisa of a meaningful opportunity to be heard.
13
In reAdoption of A.F.M., 15 P.3d 258, 262 (Alaska2001)(quoting Knutson
v. Knutson, 973 P.2d 596, 599-600 (Alaska 1999)).
-14- 7462
----------------------- Page 15-----------------------
B. The Superior Court Made Findings Based On The Statutory Best
Interests Of The Children Factors.
Alisa asserts that the superior court's decision to modify custody "focused
on findings that Alisa had not accurately reported information to medical professionals
and New York Child Protective Services" and "that Alisa had not fostered a relationship
between the children and Jay," and was therefore intended to punish her. Alisa cites
14
Hakas v. Bergenthal ,
arguing that the children's best interests, not a desire to reward
or punish a parent, should guide the custody determination.
The record supports that the superior court awarded primary physical
custody to Jay because three of the best interests factors that it identified as important in
this case weighed in his favor. Given that their son's hospitalization was the change in
circumstances prompting thecustody modificationhearing, thecourt reasonablydevoted
considerable time to discussing their son's mental health needs and to assessing how
capable each parent was of meeting those needs. The court also explained that when it
originally granted Alisa primary physical custody and permission to move to New York
with the children, it had "emphasized that it was going to be very important that [Alisa]
support an open and loving relationship between the children and their father, consistent
with AS 25.24.150(c)(6)." The court thus clearly identified which factors it found to be
the most important and why those factors were particularly relevant to the children's best
interests.
Furthermore, in discussing its concerns about Alisa's misrepresentations,
the superior court explained how these misrepresentations impacted the children's best
interests. The findings regarding Alisa's misrepresentations can be grouped into two
overarching categories. First, the court made multiple findings about how Alisa's
14
843 P.2d 642, 644 n.3 (Alaska 1992).
-15- 7462
----------------------- Page 16-----------------------
misrepresentations interfered with the children's relationship with Jay by preventing
contact for several months and then truncating his summer visitation, calling into
question Alisa's ability to foster a relationship between Jay and the children going
forward. Secondly, the court made findings that Alisa made inaccurate and incomplete
statements to her son's medical providers, including emergency room personnel and her
son's treating doctor, and it explained that providing inaccurate information posed
"unacceptable risks" that her son would not receive appropriate mental health treatment.
The court found that Jay "is capable of caring for the children, including [his son's]
unusual needs at this time," weighing this factor in his favor.
We conclude that the superior court made clear findings based on the
statutory best interests factors. The record does not support Alisa's contention that the
superior court modified custody to punish her.
C. The Superior Court's Findings Of Fact Are Not Clearly Erroneous.
Alisaargues that thesuperior courtclearly erred in determining that shewas
"not credible based on an exhibit never offered or admitted into evidence, as well as a
misinterpretation of how [her] statements compared to transcripts, testimony, and
documents in the record." Alisa argues that the superior court clearly erred in finding
that the overall tenor of Jay's calls with the children was "loving, engaging, creative and
appropriate," rather than "controlling, intimidating or manipulative."
The superior court not only reviewed the transcripts of Jay's calls with the
children, but also listened to recordings of many of the conversations. Based on its
extensive review of the calls, the superior court found that Alisa misrepresented specific
conversations between Jay and the children, as well as the overall tenor of the
conversations. As noted by the superior court, there were a few "outlier[]" calls, but the
superior court's assessment of the general nature and tone of the calls between Jay and
the children is not clearly erroneous.
-16- 7462
----------------------- Page 17-----------------------
Alisa also argues that the superior court erroneously found that she
"misrepresented" information to medical providers because she described her son as
"careless, impulsive with bad boundaries, and struggl[ing] with rules and limits." She
asserts that the superior court should have acknowledged Exhibit 30, containing two
emails from her son's teacher in Alaska, which indicated that her son was having
behavioral issues at his school in Alaska during the divorce.
Alisa's argument, however, glosses over thenuancesofthesuperior court's
findings. The court found that "[her son] generally didn't have a history of those sorts
of behaviors, and that [Alisa] didn't present the whole picture to the medical providers."
Although the two emails from his former teacher may suggest that her son had a few
behavioral issues during his final months in Alaska, the superior court also considered
school records from New York that indicated her son "lights up any room" and was "a
pleasure to have in class." The fact that the superior court did not credit the emails over
more recent school records does not leave "us with a definite and firm conviction that a
mistake has been made" by the court in characterizing her son's general behavioral
15 Therefore the superior court did not clearly err in its finding that Alisa did not
history.
"present the whole picture to the medical providers."
Alisa argues that Exhibit 21 - an exhibit that was never admitted into
evidence - should not have been relied on by the superior court in making its findings.
Exhibit 21 is a document that Jay requested from the New York Office of Children and
Family Services; this document contains an "Intake Narrative" from an unidentified
caller alleging that Jay "intimidates, interrogates, and grills" the children via Skype calls.
Jay, and later the superior court, attributed these statements to Alisa.
15
Rego v. Rego, 259 P.3d 447, 452 (Alaska 2011) (citing Ebertz v. Ebertz,
113 P.3d 643, 646 (Alaska 2005)).
-17- 7462
----------------------- Page 18-----------------------
Alisa is correct that the superior court improperly relied on Exhibit 21 for
the finding that she inaccurately reported that Jay interrogated the children daily about
what Alisa was doing. This error, however, was harmless. The court also relied on
Exhibit I, a document prepared and filed by Alisa to obtain a protective order from the
NewYorkcourt, to makemultipleother findingsregarding Alisa's inaccurateallegations
about the calls between Jay and the children. In Exhibit I Alisa states that Jay "is
manipulating, harassing, and controlling the children . . . via Skype on a daily basis."
This exhibit supports the same finding regarding Alisa's mischaracterization of Jay's
communications with the children.
Alisa additionally argues that the superior court's finding regarding her
"false characterization" to the New York court that her summer 2017 move to New York
was with the superior court's permission was clearly erroneous. She asserts that she was
simply presenting her "lay understanding of this process," and the superior court found
her statements inaccurate because she "did not use a term of art." Furthermore, she
suggests even if an inaccurate statement had been made, "it is unclear how this statement
could possibly affect . . . any determination by the New York Court that protective action
was needed regarding the Burns children."
The superior court noted that Alisa had been granted permission to take a
vacation to New York, but explained she moved for an order allowing her to stay with
the children in New York only after she had already gone to New York and leased an
apartment. The superior court found her testimony that she believed she accurately
characterized thesequenceofevents "unconvincing,"particularlybecause"theaftermath
of that move made it very clear it hadn't been approved by this court at all." The record
indicates that Alisa's statements did not just fail to use the appropriate term of art: She
mischaracterized the timeline of events regarding the move to New York. Finally, we
note the superior court did not find that this statement impacted the New York protective
-18- 7462
----------------------- Page 19-----------------------
action determination, but rather this finding is part of a larger pattern of inaccurate
statements made by Alisa that are relevant to her credibility. The superior court did not
clearly err in its findings that Alisa falsely characterized to the New York court her move
to the area and that her explanation of this false characterization was unconvincing.
Based on our review of the entire record, the superior court did not clearly
err in its findings of fact.
V. CONCLUSION
We AFFIRM the superior court's custody modification order.
-19- 7462
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
