Opinion
Supreme Court No. S-11843.
September 6, 2006.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Homer, Harold M. Brown, Judge. Superior Court No. 3HO-03-00116 Civil.
Cynthia M. Hora, Anchorage, for Appellant. Jeff Griffith, pro se, Homer.
Before: Bryner, Chief Justice, Matthews, Eastaugh, Fabe, and Carpeneti, Justices.
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
I. INTRODUCTION
This case presents the questions of whether the superior court made clearly erroneous findings of facts and abused its discretion when it modified a custody arrangement. We conclude that the challenged findings of facts were either not clearly erroneous or not central to the superior court's decision. We further conclude that the superior court made findings sufficiently germane to a determination of both parents' parenting abilities that the modification was not an abuse of discretion.
II. FACTS AND PROCEEDINGS
Mary Iverson and Jeff Griffith married in 1995. On December 15, 1995, Iverson gave birth to the couple's daughter, Cassidy. Iverson and Griffith divorced in 1996.
Prior to the 2004 custody modification giving rise to this appeal, the courts had already modified Cassidy's custody arrangement twice, once in 1998 and again in 2003. The 2003 modification stemmed from an agreement reached by the parties. Griffith first filed a motion to modify custody in which he alleged that Cassidy was at risk of either witnessing or being a victim of the domestic violence that Iverson's boyfriends perpetrated against Iverson. Court proceedings began, but the parties were able to come to an agreement before the court held a hearing. The court approved the agreement, which gave Iverson physical custody of Cassidy every other week.
As part of his 2003 motion to modify custody, Griffith alleged that Iverson had been the victim of three incidents of serious domestic violence: (1) sometime during Iverson's marriage to Bill Willis in 1997-1998, Willis threatened her with a gun and threw her against a table, breaking her ribs; (2) in 2001 Jay Francis Frees attempted to murder Iverson by choking her and suffocating her; and (3) in 2002 Jess O'Dell attempted to strangle Iverson. During her testimony in this case, Iverson acknowledged a violent incident with O'Dell and seemed to acknowledge an incident involving Frees.
In December 2003 Iverson's then-boyfriend, Kemper Sackman, was charged with driving under the influence while both Iverson and Cassidy were in the car. Then, in February 2004, Iverson contacted the police after Sackman hit her.
In May 2004 Griffith again filed a motion to modify custody, contending that Iverson's relationships with abusive men necessitated a modification.
In order to modify custody, a superior court must find "that a change in circumstances requires the modification of the award and the modification is in the best interests of the child." After conducting a hearing in December 2004, the superior court found a substantial change in circumstances to have occurred. While the superior court made no explicit reference to the best interest factors enumerated in AS 25.24.150(c), the superior court further found it to be in Cassidy's best interests to be placed in Griffith's custody. The superior court focused on the relative stability of Griffith's household, Iverson's difficulty in fostering a relationship between Cassidy and Griffith, and the domestic violence experienced by Iverson. As a result, the superior court gave Griffith legal and primary physical custody of Cassidy, with Iverson receiving visitation.
AS 25.20.110(a).
While the superior court did not specifically articulate the nature of the change in circumstances, a reading of the whole opinion indicates the court found Sackman's February 2004 assault to be a crime of domestic violence sufficient to support a finding of a change in circumstances pursuant to AS 25.20.110(c).
Iverson appeals.
III. DISCUSSION
A. Standard of Review
Because the superior court has broad discretion when determining child custody issues, we will reverse the superior court's decision only if a review of the entire record convinces us "that the trial court abused its discretion or that the controlling factual findings made by the trial court are clearly erroneous." If we are "left with a definite and firm conviction on the entire record that a mistake has been made, even though there may be evidence to support the finding," we will deem a trial court's factual finding clearly erroneous. "Abuse of discretion is established if the trial court considered improper factors or failed to consider statutorily mandated factors, or improperly weighted certain factors in making its determination."
Jenkins v. Handel, 10 P.3d 586, 589 (Alaska 2000).
Id. (quotations omitted).
Id. (quotations omitted).
B. The Findings of Fact Challenged by Iverson Are Either Not Controlling or Not Clearly Erroneous.
1. The finding that Iverson allowed Cassidy to review court pleadings
Iverson first challenges as clearly erroneous the superior court's finding that "[i]t was clear from the testimony of Mary Iverson that she had permitted Cassidy to review pleadings that had been filed in these proceedings by the parties." While it is difficult to draw from Iverson's testimony a clear conclusion that she permitted her daughter to read pleadings, we only reverse a superior court's decision if a controlling factual finding is clearly erroneous. Here, the court's finding about Cassidy's exposure to the pleadings appears to have factored into the court's analysis of whether Iverson could "facilitate and encourage a close and continuing relationship" between Cassidy and Griffith. The finding concerning the pleadings was not the only finding relevant to the superior court's analysis of this particular best interest factor. The superior court also found that Iverson interfered with Griffith's visitation so frequently that it "could be categorized as harassment." In light of this finding, which Iverson does not challenge on appeal, the superior court's finding about Cassidy's access to the pleadings cannot be deemed controlling and would not justify reversal even if erroneous.
Id. (quotations omitted).
AS 25.24.150(c)(6).
2. The finding that Iverson was assaulted numerous times
Iverson also argues that the superior court committed clear error when it found that she was "assaulted on numerous occasions" by men with whom she was having relationships. Iverson challenges this finding on two grounds. Iverson first argues that the court should not have considered any evidence of assaults that occurred prior to July 2003, when Iverson and Griffith reached a custody agreement approved by the court. We have previously held that when a stipulated child custody arrangement has been in effect for a significant period of time, a parent seeking custody modification must show that circumstances have changed significantly since the agreement was reached. Here, however, the superior court did not need to rely on evidence of the pre-July 2003 assaults in order to conclude that a change in circumstances had taken place. The superior court's opinion indicates it found Sackman's February 2004 assault to be a crime of domestic violence sufficient to support a finding of a change in circumstance pursuant to AS 25.20.110(c).
Garding v. Garding, 767 P.2d 183, 185 (Alaska 1989).
AS 25.20.110(c) states that "a finding that a crime involving domestic violence has occurred since the last custody or visitation determination is a finding of change of circumstances."
Given the evidence of the February 2004 assault, the superior court considered the pre-July 2003 assaults as part of its determination not of a change in circumstances but instead of Cassidy's best interests. The superior court did not conduct a hearing prior to approving the parties' July 2003 custody agreement. As a result, prior to the December 2004 hearing, the superior court had not had an opportunity to adjudicate whether Cassidy's best interests were affected by the 2001 and 2002 assaults on Iverson. We conclude that because the court had not previously considered evidence of the pre-July 2003 assaults on Iverson, that evidence was relevant to a determination during the most recent modification proceeding of Cassidy's best interests.
We do not imply that the evidence of the earlier assaults would not have been relevant even if they had been previously considered. The facts do not present that question, so we need not decide it. Iverson also makes an estoppel argument, contending that because Griffith was aware of the 2001 and 2002 incidents of domestic violence when he agreed to the 2003 custody modification, and because the court approved the agreement, both Griffith and the court should be prevented from relying on those previous incidents of violence in this subsequent modification proceeding. As we have explained, because the court did not adjudicate Cassidy's best interests prior to approving the parties' 2003 agreement, the court correctly considered the 2001 and 2002 incidents when resolving Griffith's most recent motion for modification.
Iverson further argues that the superior court could not have found that she was assaulted on "numerous occasions" without having considered impermissible hearsay evidence. Iverson testified that there were violent incidents with men with whom she was having relationships, and on appeal explains that she changed residences three times as the result of domestic violence. Given these acknowledgments, the superior court's conclusion that Iverson had been assaulted numerous times is not clearly erroneous.
3. The finding that Cassidy was exposed to some of the assaults on her mother.
Iverson argues that while the superior court appears to have found that Cassidy witnessed Kemper Sackman's assault on Iverson, the "great weight of the evidence" suggests that Cassidy was not present at the time.
The superior court heard conflicting evidence about Cassidy's whereabouts on the night of Sackman's assault on Iverson. Iverson testified that Cassidy was not present at the time of the assault. Iverson also submitted a case assessment written by Office of Children Services (OCS) employee Jeanne Croy in which Croy wrote that Cassidy had no knowledge of the assault and was with Griffith the night the assault occurred. However, Griffith testified that Cassidy had not been with him the night of the assault and therefore must have been with her mother. Given the conflicting evidence, the superior court could have chosen to believe Griffith.
Iverson further argues that no evidence supports the superior court's conclusion that while it could not "say with precision whether and to what extent [Cassidy] has been exposed to [other instances of] domestic violence or the danger of injury because of poor judgment on the part of her mother[,] it would seem that such exposure more likely than not has occurred." Iverson's position is supported by her own denials that Cassidy was exposed to violence. However, the court could have concluded that given the serious nature of the instances of abuse that Iverson acknowledged occurring, they likely were not isolated incidents as Iverson claimed. The superior court also could have questioned Iverson's testimony that Cassidy remained asleep the night that Frees attempted to kill Iverson.
As a result of the conflicting testimony about Cassidy's whereabouts on the night of the Sackman assault, as well as questions about the plausibility of Iverson's testimony that Cassidy was never exposed to domestic violence, we are not left "with a definite and firm conviction" that the superior court's findings are mistaken.
A child need not see domestic violence in order to be exposed to it. Children may "hear the sounds of crying, smashing furniture, and threats by the perpetrator from the next room. Additionally, children may see the aftermath of the violence in the form of blood, bruises, and broken glass." Rachel L. Melissa, Note, Oregon's Response to the Impact of Domestic Violence on Children, 82 OR. L.REV. 1125, 1128-29 (2003).
Jenkins, 10 P.3d at 589 (quotations omitted).
C. The Superior Court Did Not Abuse Its Discretion.
In addition to challenging some of the superior court's factual findings, Iverson also argues that the superior court abused its discretion. Alaska Statute 25.24.150(d) states that "[i]n awarding custody the court may consider only those facts that directly affect the well-being of the child." Iverson contends that because there was no evidence that the domestic abuse experienced by Iverson or her frequent moves adversely affected Cassidy's well-being, the superior court erred when it considered those facts. Iverson further argues that the superior court abused its discretion when it accorded weight to a social worker's opinion of her credibility. Finally, Iverson argues that the superior court failed to determine Cassidy's custody preference and ignored Iverson's ability to provide for Cassidy's "physical and emotional well-being."
While we address each of Iverson's specific arguments below, we conclude that the superior court made findings germane to both parents' ability to meet Cassidy's needs and that as a result the superior court was within its discretion when it modified the custody arrangement.
1. The superior court's consideration of domestic violence
Iverson argues that since the superior court made no findings that Cassidy's well-being had been affected by the domestic violence, the superior court abused its discretion when it considered evidence of that domestic violence. According to Iverson, Cassidy could not have been adversely affected by the violence because Cassidy did not witness it and Iverson "took appropriate steps to protect her child from exposure to domestic violence by leaving the men who had assaulted her and obtaining protective orders."
Alaska Statute 25.24.150(c) requires courts making custody determinations to consider certain factors, including "any evidence of domestic violence, child abuse, or child neglect in the proposed custodial household. . . ." While Iverson is correct that another section of the statute restricts a court to considering "only those facts that directly affect the well-being of the child," the language of AS 25.24.150(c) suggests that the legislature believes that domestic violence in a proposed custodian's home always directly affects the well-being of the child. Alaska Statute 25.24.150(c)(8), the substance abuse factor, incorporates a direct effect qualifier, instructing courts to consider evidence of "substance abuse by either parent or other members of the household" only if it "directly affects the emotional or physical well-being of the child." The absence of the qualifier in AS 25.24.150(c)(7), the domestic violence factor, indicates the legislature's belief that domestic violence always has a direct effect on a child's well-being. Moreover, Iverson's argument that the superior court abused its discretion by considering facts not shown to affect Cassidy adversely misinterprets AS 25.24.150(d). As we have previously explained, AS 25.24.150(d) limits a court's consideration to those facts that directly affect a child. A direct effect need not be an adverse effect, and "the absence of negative impact" from a fact "does not automatically mean that custody should remain unchanged."
AS 25.24.150(c)(7).
This belief finds support in the literature. See, e.g., Amy B. Levin, Note, Child Witnesses of Domestic Violence: How Should Judges Apply the Best Interests of the Child Standard in Custody and Visitation Cases Involving Domestic Violence?, 47 UCLA L.REV. 813, 832-33 (2000) ("Researchers have found that children who witness [domestic violence] suffer from a number of psychological and emotional problems. More specifically, children suffer from internalizing problems such as depression, anxiety, and withdrawal. They also suffer from externalizing problems such as aggression, `acting out' behaviors, and delinquency. Children from violent homes may also experience impaired social competence and even post-traumatic stress disorder (PTSD). Some researchers believe that children who witness [domestic violence] are also at risk for substance abuse or suicide." (citations omitted)).
Barrett v. Alguire, 35 P.3d 1, 10 (Alaska 2001).
Id.
Our review of the appropriateness of the superior court's consideration of the domestic violence in this case would have been made easier had the superior court made an explicit finding about the way in which the domestic violence suffered by Iverson affected Cassidy's best interests. Nevertheless, in light of the language of AS 25.24.150(c) and (d) and the well-documented effects of domestic violence on children generally, we cannot conclude that the superior court abused its discretion when it considered the instances of domestic violence.
2. The superior court's consideration of Iverson's frequent moves
Iverson argues that the superior court abused its discretion when it concluded that her home was unstable because she moved frequently. To support her argument, Iverson cites Chief Justice Rabinowitz's concurrence in Craig v. McBride, in which he challenged the majority's assumption that the fact that a mother moved frequently was relevant to determining whether she was able to provide a stable home environment. In Chief Justice Rabinowitz's view, "the fact that the physical location of a child's home changes may have little or no bearing on the stability of the home. Stability is often a function of parental attitude and not of geography."
639 P.2d 303 (Alaska 1982).
Id. at 308 (Rabinowitz, C.J., concurring).
Id.
The superior court made several findings with respect to the relative stability of Iverson's and Griffith's living situations:
Since moving to Homer in 2002 or 2003 Mary Iverson has resided in at least five or six different residences. The court finds that there is much instability in her life and that her life is, as Kathy Calloway testified, chaotic.
On the other hand, Mr. Griffith is employed fulltime in a job that allows him to work out of the home 90 percent of the time. His life is not chaotic. He can provide a stable and loving environment for his daughter Cassidy.
While we acknowledge that frequent moves do not always result in instability, they are certainly relevant to a determination of stability. Furthermore, the superior court in this case had additional evidence from which to reach a conclusion that Griffith provided a more stable home for Cassidy than did Iverson. The superior court's comment about the "instability in [Iverson's] life" likely encompasses not only Iverson's frequent relocations but also the numerous relationships in which she has been involved. The superior court's finding that Iverson's life was unstable and chaotic is not clearly erroneous.
Iverson also argues that the superior court abused its discretion when it considered her frequent moves because there is no evidence that Cassidy was adversely affected by the relocations. As we have explained, the superior court may consider any facts directly affecting a child, regardless of whether the effect is adverse.
See Barrett 35 P.3d at 10; supra page 10. Iverson also argues that the superior court erred by considering her moves because doing so penalized her for leaving abusive partners. Iverson explains that court consideration of relocations places her and other victims of domestic violence in a Catch-22. The victim of violence would be criticized for staying with her child in the home of an abusive partner but is deemed to offer an unstable living situation if she moves out. While Iverson may be correct that the superior court would look unfavorably at the home she offers in either circumstance, she is incorrect when she views this result as a penalty to her. The superior court is charged with determining the best interests of the child, and if one parent is repeatedly faced with either moving or remaining in an abusive relationship, it could well be in the child's best interest to live with the other parent.
3. The superior court's consideration of a social worker's assessment of Iverson's credibility
Iverson contends that the superior court abused its discretion by according weight to an OCS social worker's opinion that Iverson filed false or exaggerated reports against Griffith. According to Iverson, the superior court's mention of the social worker's testimony indicates that it gave weight to the social worker's opinion of Iverson's credibility. In the context of the superior court's opinion, however, it appears that the superior court was much more interested in the social worker's views about Iverson and Griffith's respective parenting abilities and only mentioned the social worker's impression of Iverson's credibility in passing. Even if the superior court did grant weight to the social worker's views of Iverson's credibility, and even if the social worker's testimony about Iverson's credibility was problematic, any resulting error would be harmless, since the superior court had other reasons for calling Iverson's credibility into question.
For instance, the superior court explained that "[u]nder the circumstances," Iverson's testimony that she did not know that Sackman was intoxicated when she entered the vehicle that he was driving "was not credible."
4. The superior court's alleged failure to consider Iverson's parenting abilities and Cassidy's preference
Iverson argues that the superior court failed to consider both her ability to provide for Cassidy's "health and safety" and Cassidy's preference about which parent should have custody. According to Iverson, the superior court chose instead to assign "too much weight" to her "poor choice of men."
Although the superior court made no explicit findings about Iverson and Griffith's ability to provide for Cassidy's needs, it did make several findings germane to the issue. The superior court found that Iverson had allowed her daughter to be a passenger in a car driven by someone under the influence of an intoxicating beverage, that she called Cassidy excessively when her ex-husband had custody, and that she attempted to sabotage the relationship between Cassidy and Griffith. By contrast, the superior court found the OCS social worker involved with the family to have a favorable impression of Griffith's parenting skills. While none of these findings on their own necessarily justify a change in custody, when taken together, they support the superior court's decision to modify Cassidy's custody.
With respect to Iverson's argument that the superior court abused its discretion by not hearing Cassidy's preferences, Cassidy turned nine during the course of the hearing. Alaska Statute 25.24.150(c)(3) requires the superior court to consider "the child's preference if the child is of sufficient age and capacity to form a preference." We cannot conclude that a nine-year-old is so obviously of "sufficient age and capacity" to form a custody preference that the superior court abused its discretion by not hearing from Cassidy.
AS 25.24.150(c)(3).
IV. CONCLUSION
For the above reasons we AFFIRM the superior court's modification of custody.