Opinion
Supreme Court No. S-13900.
July 27, 2011.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Peter A. Michalski, Judge, Superior Court No. 3AN-05-04882 CI.
Appearances: Kevin Thomas, pro se, Anchorage, Appellant. David R. Edgren, Edgren Law Offices, LLC, Wasilla, for Appellee.
Before: Carpeneti, Chief Justice, Fabe, Winfree, Christen, and Stowers, Justices.
NOTICE
Memorandum decisions of this court do not create legal precedent. A party wishing to cite a memorandum decision in a brief or at oral argument should review Appellate Rule 214(d).
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
I. INTRODUCTION
Kevin and Gail Thomas divorced in 2006 after a 21-year marriage. They are the parents of nine children, five of whom are still minors. The parties have been involved in numerous legal disputes concerning domestic violence, child custody, and division of the marital estate. This is the third appeal we have considered in this case.
Gail had custody of the parties' minor children in 2008 when she was arrested and charged with striking two of them. The superior court immediately awarded interim custody to Kevin. Gail's criminal charges were resolved by a deferred sentencing agreement that required her to engage in parenting classes, anger management counseling, a mental health assessment, and, if ordered in the custody case, a bonding assessment to determine the appropriate level of contact with the minor children. More than a year after her arrest, Gail filed a motion to permit her to have limited supervised visits with the minor children in a therapeutic setting for a six-month period. The superior court granted the motion, and Kevin appeals. We affirm the superior court's ruling in all respects.
II. FACTS AND PROCEEDINGS
Kevin and Gail Thomas have litigated issues stemming from their divorce for the last six years, appearing before our court on two previous occasions. Our decisions in those appeals explain the factual circumstances leading to this case. We summarize here only those facts relating to the parties' most recent dispute.
Thomas v. Thomas ( Thomas II), Mem. Op. J. No. 1378, 2011 WL 1330803 (Alaska, Apr. 6, 2011); Thomas v. Thomas ( Thomas I), 171 P.3d 98, 100-02 (Alaska 2007).
Thomas II, 2011 WL 1330803, at *1; Thomas I, 171 P.3d at 100-02.
After the original custody trial, the superior court's custody decision was appealed and we remanded the case for additional findings. The Findings and Order on Remand memorialized Kevin's admitted physical abuse of Gail during the parties' marriage, including an instance when he "pounded [her] head on the floor." The superior court found "the behavior of the father toward the mother both through his actual physical assault of her, [and] also through his domination and, really, subjugation of her, create[ed] an environment unhealthy for these children. By his inability to show respect for the mother the father failed to act as a proper model for his children." The superior court was clearly concerned that the parties' children have been caught in the middle of their parents' conflict, and that Kevin's conduct had alienated the older children from Gail. But the court found that neither party was trying to promote a healthy relationship between the children and the other parent:
The more the mother acts as an independent woman, the more she sees the father as damaging to her children, and the less she is willing to promote their relationship with him. And the more independent the mother becomes, the less the father respects her, the more he puts her down and the greater the frustration and anger that he demonstrates toward her, all of which is communicated to the children.
On remand, the superior court awarded custody of the minor children to Gail.
This appeal arises from Gail's November 10, 2008 arrest for child abuse at the family residence. Gail hit two of the children with a wooden stick. The children called Kevin, who called police. Gail was released from custody the same day she was arrested, but a condition of her release was that she have no contact with minor children while her criminal case was pending.
The arrest report states that one daughter moved a sofa to reach something and in doing so she accidentally unplugged a lamp. Gail became angry and chased her to the bathroom, then hit her with a stick. One son went outside to get a snowball to stop Gail hitting his sister. When he threw the snowball, Gail hit him on the hand and wrist with the stick.
At a hearing held four days after Gail's arrest, the superior court issued an order granting Kevin immediate interim legal and physical custody of the minor children and specifying that custody would not revert to Gail without express court order.
Gail entered into a deferred sentencing agreement on February 3, 2009. Among other conditions, the deferred sentencing agreement required that Gail plead no contest or guilty to one count of child abuse, actively participate in and complete a 12-hour parenting program, undergo a mental health assessment and follow its recommendations, complete at least 12 weeks of an anger management course, and "follow the terms of the civil custody order, which could include a bonding assessment with her children to determine the appropriate level of contact with them, and . . . follow all recommendations therein to encourage and enhance her interactions with her children."
On December 14, 2009, Gail filed a motion to establish visitation with the six children who remained minors at that time. When Gail filed her motion seeking to re-establish visitation, she had not had contact with the children in over a year. Gail's motion sought individual visits with each child "in a clinical setting under the supervision of a duly qualified therapist or other family counseling professional." The motion asked that the visits last one to two hours starting with the youngest child and that the counselor or therapist assess whether the children should be allowed to visit with her after the first visit. The motion proposed this supervised visitation schedule for a six-month period, after which the counselor or therapist would make a recommendation on whether the visits should continue. Finally, Gail's motion asked that the parties equally share the cost of counseling.
On January 21, 2010, Kevin filed an opposition to the motion to establish visitation. He argued that the motion for visitation: (1) did not show a change in circumstances or that visitation was in the best interests of the children pursuant to AS 25.20.110; (2) failed to demonstrate that Gail completed the necessary rehabilitation pursuant to AS 25.20.061; (3) failed to make provisions for the preferences of the children pursuant to AS 25.24.150(c)(3); (4) improperly required Kevin to pay half of the counseling costs in violation of AS 25.20.061; (5) was not provided to Kevin when it was submitted to the court, in violation of Alaska Rule of Civil Procedure Rule 5; (6) improperly implied that Gail was innocent of child abuse and domestic violence; and (7) failed to provide specificity about the visitation and was improperly vague.
The superior court held a hearing on the motion on March 23, 2010. During the hearing, the superior court noted that visitation was being pursued with the "goal of trying to help these kids have a touch of contact with [their] mom. I can't believe that Mr. Thomas doesn't . . . want that, even though he is greatly difficult in this case. As a father he knows that it's important for these children to uphold the mother. And it [would] be right for these children that they know her — know her faults, know her shortcomings." Kevin responded to this comment by stating, "I didn't really oppose the motion. I just said that it's deficient along the requirements of the statute. . . . There are certain requirements that need to be met." The superior court granted Gail's motion, but placed numerous restrictions on what can fairly be described as a trial period of visitation. The court ordered:
1. [Gail] shall have visitation commencing immediately with her remaining minor children in a clinical setting under the supervision of a duly qualified therapist or other family counseling professional. . . .
2. [Gail] shall have one visit of one to two hours each week with one of the children, starting with the youngest first.
3. After each child has had a visit with [Gail] under these circumstances, the children who would be attending future visits at any particular time shall be based on the recommendation of the counselor or therapist.
4. The visits as described in 1-3 above shall go on for at least six months, or longer based on a recommendation to that effect of the counselor or therapist.
5. After the counselor or therapist . . . determine[s] that the visits [are] no longer necessary, [Gail] shall come back to the court and apply for further visitation with the children based on such recommendations [as] she . . . receive[s] from the counselor or therapist.
6. [Kevin] shall transport the child being visited with to and from the visitation, shall not [] otherwise interfere with the visitation, and shall undertake his best efforts to be supportive of the visitation and its goal of renewing an ongoing relationship between the [Gail] and the children.
7. The parties shall split the cost of the counseling 50-50, in the best interests of the children, with [Gail] to advance the funds necessary for the counseling to occur and [Kevin] to promptly reimburse her based on presentation through [Gail's] counsel of proof of payment.
Kevin filed a motion for reconsideration, which the superior court denied. Kevin appeals.
III. STANDARD OF REVIEW
The superior court may modify a visitation award if it determines that "a change in circumstances requires the modification of the award and the modification is in the best interests of the child." "The parent moving for modification has the burden of proving a substantial change in circumstances as a threshold matter." "The change in circumstances required to modify visitation, though, is not as great as that required for a change in custody." "[W ]hether the moving party has met its burden of demonstrating a change in circumstances so as to be entitled to an evidentiary hearing is a matter of law which we review de novo."
AS 25.20.110(a).
Morino v. Swayman, 970 P.2d 426, 428 (Alaska 1999) (citing Long v. Long, 816 P.2d 145, 150 (Alaska 1991)).
Id. (citing Carter v. Brodrick, 816 P.2d 202, 204 (Alaska 1991)).
Id.
"We will not reverse a superior court's custody determination unless it abused its discretion or its controlling factual findings are clearly erroneous." "The superior court abuses its discretion where it `consider[s] improper factors in making its custody determination, fail[s] to consider statutorily mandated factors, or assign[s] disproportionate weight to particular factors while ignoring others.'" "The superior court's factual findings are clearly erroneous if, after a review of the entire record, we are left with the definite impression that a mistake has been made."
Thomas v. Thomas ( Thomas I), 171 P.3d 98, 102 (Alaska 2007) (citing Elton H. v. Naomi R., 119 P.3d 969, 973-74 (Alaska 2005)).
Id. (quoting Elton H., 119 P.3d at 974).
Id. (citing Elton H., 119 P.3d at 974).
IV. DISCUSSION
Kevin lists eight issues presented for review and makes 13 arguments. Kevin's contentions can be grouped into three categories: (1) the superior court erred in concluding that there was a material change in circumstances warranting modification of visitation; (2) the superior court abused its discretion in concluding that supervised visitation with the parties' minor children was in their best interests; and (3) the superior court should have considered Gail's economic misconduct.
A. The Evidence Established A Material Change In Circumstances.
Kevin claims that Gail failed to "validate changes in circumstances through evidence, exhibits, or testimony." But Kevin's argument overlooks the history of this case: Gail had primary physical custody of the minor children at the time she was arrested. Custody was modified immediately after Gail was charged with child abuse. The superior court's order granting custody to Kevin impliedly acknowledged that Gail's criminal charge and the "no contact" order entered in her criminal case constituted a material change in circumstances. Though it did not articulate that a material change in circumstances had transpired, the court's interim award of sole legal and physical custody to Kevin impliedly recognized that there had been such a change — Gail was ordered not to have any contact with the parties' minor children as a condition of her release.
More than a year later, Gail sought to establish limited visitation with the parties' minor children in a supervised, therapeutic setting. The superior court ruled on Gail's motion 17 months after her arrest. In doing so, the superior court recognized that the deferred sentencing agreement entered in her criminal case constituted another material change in circumstances because it marked the end of the no contact order and it expressly contemplated a bonding assessment for Gail and the younger children. Although the superior court did not explicitly state that it found a second material change in circumstances, this finding was made implicitly — and our review of the record shows it was amply supported. The evidence established a material change in circumstances.
B. The Superior Court Did Not Clearly Err Or Abuse Its Discretion In Determining That Limited Supervised Visitation With Gail Was In the Minor Children's Best Interests.
Kevin makes several arguments in support of his position that the superior court abused its discretion by granting limited, supervised visitation. Kevin's arguments can be grouped into the following points: (1) in the case of child abuse, the party requesting visitation carries the burden of demonstrating that modification is in the children's best interests; (2) Kevin and the children have a due process right to be heard regarding the children's best interests; (3) the best interest finding must be made on the record; (4) the interests of the parents should not be elevated above the interests of the children; (5) the children's preferences must be considered; (6) the children should be kept together; and (7) the court must consider the child abuse committed by Gail.
In determining the children's best interests, the superior court must consider all the factors set out by the legislature in AS 25.24.150(c). We review "the adequacy of findings for `whether they give a clear indication of the factors considered important by the trial court or allow us to determine from the record what considerations were involved.'" "The superior court need not discuss each of the factors; it must only address those that are `actually relevant in light of the evidence presented.'"
Thomas I, 171 P.3d at 102.
Id. (quoting Borchgrevink v. Borchgrevink, 941 P.2d 132, 137 (Alaska 1997)).
Id. at 102-03 (quoting Virgin v. Virgin, 990 P.2d 1040, 1045 (Alaska 1999)).
Kevin's first argument can be resolved quickly because there is no dispute that Gail bore the burden of proof at the hearing on her motion to permit limited supervision.
Kevin also correctly argues that he had a right to be heard on the motion to establish limited visitation in a therapeutic setting. The record shows he was given that opportunity. Kevin was present at the March 23, 2010 hearing when the superior court considered Gail's motion and Kevin's opposition. The record shows that the superior court asked whether Kevin felt that this very small amount of supervised contact between the minor children and Gail was appropriate, and Kevin responded, "I didn't really oppose the motion. I just said it was deficient along the guidelines of the statute. . . . There are certain guidelines that need to be met." Later in the hearing, the superior court asked Kevin: "Do you oppose in any way the [visitation] plan?" Kevin responded: "I oppose the 50/50 split of the expenses." Finally, after discussing the deferred sentencing agreement, the superior court once again asked Kevin: "Do you have anything else on the subject of whether an order should be granted?" Kevin responded: "I can say . . . that Sunday afternoons are going to work best for us." Presented with these opportunities to give the superior court reasons that the visitation was not in the children's best interests, Kevin only told the court the day of the week that would be most convenient for visitation. Kevin made additional arguments in his written opposition, but there is no reason to suspect that the court did not consider them. Kevin has not shown that he was denied an opportunity to be heard in opposition to Gail's motion.
Kevin did not raise the issue of splitting the expenses in his brief to our court, but he did raise the issue during oral argument. AS 25.20.061 states:
If visitation is awarded to a parent who has committed a crime involving domestic violence, against the other parent or a child of the two parents, within the five years preceding the award of visitation, the court may set conditions for the visitation, including
. . . .
(5) the perpetrator shall pay costs of supervised visitation as set by the court[.]
AS 25.20.061 permits but does not obligate courts to require the perpetrator of domestic violence to pay the costs of supervised visitation. Under the circumstances of this case, the superior court did not abuse its discretion by splitting the costs of supervised visitation between Kevin and Gail.
Kevin's third argument is that the superior court's findings must be made on record. We have never required that the superior court make these findings orally at the conclusion of a hearing on a motion to modify; it is sufficient that the findings be made either on record or in a written order. Nor was the superior court required to explicitly address each statutory factor; it is only required to address "those [factors] that are `actually relevant in light of the evidence presented.'" Had the court entered a long-term order providing for visitation after Gail's admitted child abuse and such a long gap in regular contact with the children, additional findings would have been necessary. But in this case, the court was only entering an order to provide six months of supervised visits in a therapeutic setting. The order calls for individual weekly sessions, so it amounts to less than one visit per month with each child. Put in context, the order is fairly read as establishing a trial period aimed at allowing the superior court to gain the information needed to consider whether a permanent visitation schedule is feasible. The findings the court entered amply support the conclusion that limited, supervised visitation may be in the children's best interests; indeed, without it, it is likely the children will have no relationship with Gail at all.
Thomas I, 171 P.3d at 102-03 (quoting Virgin, 990 P.2d at 1045).
At oral argument before our court, Kevin agreed that the minor children still have not had contact with Gail. From the record before us, we can see no reason the superior court's order has not been followed; it was not stayed pending appeal. We reach no conclusion about why the court-ordered visitation has not taken place, but observe that it has now been approximately two and a half years since the minor children have had regular contact with Gail. Both parties will be subject to the superior court's contempt powers if they are found to have willfully refused to obey a court order.
Kevin's fourth argument is that the parent's interests should not be elevated above the interests of the children. We agree; the superior court's order is an attempt to focus on the children's needs rather than what appears to be the parties' ongoing mutual hostility.
Kevin argued at the hearing in superior court and to this court on appeal that the children do not want to see Gail and that the court must take their wishes into consideration. He repeatedly urged this court to require the superior court to appoint a guardian ad litem or custody investigator to determine the children's preferences. Kevin also filed numerous affidavits signed by the children expressing their views on how the custody dispute should be resolved.
Alaska Statute 25.24.150(c)(3) requires that a child's preference must be considered if the child is of an age and capacity to form a meaningful preference. Kevin's argument that the children's views have not been given adequate weight overlooks that the ages of the six youngest children ranged from 6 to 12 at the time Gail was arrested and that they had almost no contact with her in the 17 months prior to the hearing on Gail's motion. Kevin also overlooks his record of persistently involving the children in the parties' custody dispute and the superior court's concern, as reflected in its original findings, that Kevin had contributed to alienating the children from Gail. The latter finding was based in part on the report of the child custody investigation dated March 16, 2005. The custody investigator observed, "The children's opinions closely reflected Father's feelings about the parents' relationship. He has talked with them extensively about the parents' separation and appears to have influenced them." The superior court did not abuse its discretion by declining to have the children interviewed for another child custody investigation report or by declining to appoint a guardian ad litem. If anything, it is apparent that the superior court's decision not to order the involvement of those additional actors was an attempt to minimize the children's exposure to the conflict in this case and to prevent them from being asked, again, to state a preference for either parent.
For some of the children, the parties' custody battle has spanned nearly their entire lives. When the first custody report was prepared, for example, the youngest child was just one year old.
Kevin's sixth argument is that the children should be kept together, but the limited supervised visitation requested by Gail is clearly designed to allow the trial court to obtain a professional opinion about the status of Gail's relationship with the younger children and whether additional visitation — perhaps supervised, perhaps in a therapeutic setting — would be in their best interests. The position that the children's best interests are served by keeping them together assumes that all of the children have the same bond with Gail. Yet two of them were the subject of the child abuse charge; it may be that they will require different or individual therapeutic intervention. Further, the ages of the five younger children who now remain minors ranged from 3 to 14 when they last had regular contact with Gail. Given their ages and the very extended gap in Gail's contact with the children, it should be expected that they will have different degrees of attachment to her. The order permitting limited therapeutic visitation is intended to yield reliable information from w hich to gauge an appropriate future visitation order that meets the individual needs of the children. Appropriately, the order does not presuppose that the same frequency or type of visitation will be in the best interests of each child.
Finally, Kevin argues that the superior court must consider the child abuse committed by Gail. We agree. The superior court's statements on record, coupled with the findings entered after remand explain the reasons the court decided that, at a minimum, supervised contact in a therapeutic setting was in the best interests of the children for a six-month trial period. The superior court noted that visitation was being pursued with the "goal of trying to help these kids have a touch of contact with [their] mom. I can't believe that Mr. Thomas doesn't . . . want that, even though he is greatly difficult in this case. As a father he knows that it's important for these children to uphold the mother. And it [would] be right for these children that they know her — know her faults, know her shortcomings." The superior court was clearly concerned with the children's safety and with their physical and emotional needs — hence, the requirement that the visitation be supervised by a therapist. The six-month trial period was intended to allow the court to gain sufficient information to consider whether a longer-term order might be appropriate.
The suggestion that the superior court overlooked Gail's abuse is not well-founded. The record shows that the superior court referred to the deferred sentencing agreement that was entered in Gail's criminal case, and was well aware that Gail had admitted to the allegation of child abuse. The superior court stated that the modification to visitation was being ordered, in part, to comply with the deferred sentencing agreement. The superior court explained:
[As] [p]art of the probationary condition . . . there is to be a bonding assessment and that is what I assume that the order [in the civil case] should also say. It should set forth the purpose contained in paragraph five [of the deferred sentencing agreement] so that we fulfill the duty that's been established in the criminal case. And so it can't be one of these Catch-22s. We have to break the cycle of inanity somewhere and I do not think it is inane. But it can't be one of these things that says she must but then she can't. That doesn't make any sense. It would be wrong to do that. I must interpret Title 25 . . . in a common sense way. . . . Thinking about all of those in context, [the order in the civil case] should include the paragraph five language.
Paragraph five of the deferred sentencing agreement reads: "[Gail] shall follow the terms of the civil custody order, which could include a bonding assessment with her children to determine the appropriate level of contact with them, and shall follow all recommendations therein to encourage and enhance her interactions with her children."
The superior court's order allows for exceptionally limited visitation, only in the presence of a counselor, for a six-month trial period. Visits can only occur in a "clinical setting under the supervision of a duly qualified therapist or other family counseling professional"; the visits are limited to "one visit of one to two hours each week with one of the children"; and after the first visit "the children who would be attending future visits at any particular time shall be based on the recommendation of the counselor or therapist." The arrangement is intended to allow a counselor or therapist to assess Gail's bond with the children. The counselor or therapist is to monitor the contact and determine whether continued visits with any of the children are in the particular child's best interests. After the bonding assessment Gail may "come back to the court and apply for further visitation with the children based on such recommendations she would receive from the counselor or therapist." Though Kevin argues that this supervised visitation is not in the children's best interests, we have explained that the trial period described in the order will allow the court to determine just that: whether it is in the children's best interests to have regular contact with Gail and, if so, what type of contact is appropriate (supervised or unsupervised, therapeutic or not, individual or collective).
The record demonstrates that the superior court did not abuse its discretion by ordering that the minor children have limited supervised visitation with Gail in a therapeutic setting.
C. The Superior Court Did Not Err By Not Considering Kevin's Allegations That Gail Had Committed Economic Misconduct.
Kevin claims that Gail committed economic misconduct with some gold that Gail obtained from the sale of an apartment complex she owned with her sister, and that she attempted to sell the marital home when she was in possession of it. These issues were not raised in Kevin's opposition to the motion to establish visitation and Kevin provides no argument to explain why these issues are relevant to visitation. The superior court did not err by declining to consider allegations of economic misconduct when it ruled on Gail's motion for visitation.
Thomas I, 171 P.3d at l00.
V. CONCLUSION
We AFFIRM the superior court's order in all respects.