Opinion
Supreme Court No. S-12097.
May 9, 2007.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Stephanie E. Joannides, Judge, Superior Court No. 3AN-03-3879 CI.
Melanie Horner (O'Dell), pro se, Anchorage. No brief filed by Appellee.
Before: Fabe, Chief Justice, Matthews, Eastaugh, Bryner, and Carpeneti, Justices.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d). Accordingly, this memorandum decision may not be cited for any proposition of law or as an example of the proper resolution of any issue.
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
I. INTRODUCTION
Pro se appellant Melanie O'Dell (now known as Melanie Horner) asks that we reverse the superior court's final child custody order and grant her primary physical custody of her daughter. Melanie claims that the superior court should not have increased the amount of custody her ex-husband, Shaun, received without finding a significant change in circumstances. She also disputes the superior court's finding that she was "verbally and mentally abusive." She additionally contends that the superior court failed to give proper weight to the religious needs of the child and the actual time the child spent with each parent. Finally, she argues that the superior court failed to apply AS 25.24.150 as amended in 2004, and that it erred in defining "joint physical custody" and "intervention program for batterers" for the purposes of that statute.
We hold that the superior court did not commit reversible error in its final child custody order and affirm its decision.
II. FACTS AND PROCEEDINGS
Shaun and Melanie O'Dell married on April 7, 1996 and divorced on April 15, 2004. They have one child, a daughter, born in 2000. The parties contested custody of their daughter, and the superior court entered three separate child custody orders. The first was an interim order entered by Superior Court Judge Philip R. Volland on October 27, 2003, and the second and third were entered in writing by Superior Court Judge Stephanie E. Joannides on August 12, 2004 and October 5, 2005 following two separate custody trials. Only the third and final order is challenged here.
The facts in this case were contested at trial. Shaun and Melanie each testified that the other was verbally, emotionally, and physically abusive. Although Shaun denied being physically abusive in both his testimony and closing argument, his anger management counselor testified that Shaun had admitted that he had physically abused Melanie. The superior court found that Shaun committed domestic violence on more than one occasion; but it did not find that Melanie was physically abusive. The superior court did not specify which allegations of domestic violence it relied on to make this finding. In a prior ruling, however, the court found that Shaun improperly notified Melanie of her pet's death by showing her a picture of its corpse on her birthday and also found that Shaun once raised his fist as if to strike Melanie while they were out with friends.
Melanie testified to several other instances of physical abuse, including one in which Shaun pulled her out of her car by her hair, another in which he pushed her over in a chair and kicked her, and a third in which he pulled her out of her chair in front of their daughter. She also testified that Shaun routinely threatened to beat her while raising his fist. Although the superior court did not specifically comment on this part of her testimony, the superior court probably found it to be credible because it found that Shaun had committed domestic violence more than once.
AS 25.90.010 provides that in Title 25, "domestic violence" has the meaning given in AS 18.66.990. Section .990 defines "domestic violence" to include crimes against the person, burglary, criminal trespass, arson, criminal mischief, terrorist threats, violating a protective order, and harassment. Because the incident involving Melanie's dead pet does not seem to fall into one of these categories, the superior court probably relied on other parts of Melanie's testimony when it found that Shaun perpetrated more than one act of domestic violence.
Regarding the presence of verbal and emotional abuse, the superior court initially found in its August 12, 2004 ruling that there was "mutual verbal arguing" in the marriage but described only Shaun as "emotionally abusive." The court later found in its October 5, 2005 ruling that Melanie "was also verbally and mentally abusive." The superior court qualified this remark by noting that Shaun "has engaged in the more egregious behavior during the parties' relationship and his anger has taken a more dangerous tone at times."
After Shaun completed a court-ordered anger management program, he was granted additional custody of his daughter over Melanie's opposition. Melanie presented testimony regarding Shaun's behavior that she claimed demonstrated that he continued to be uncooperative, neglectful of their child, and verbally abusive.
Melanie appeals from the October 5, 2006 order.
Shaun O'Dell did not file a brief in this case.
III. DISCUSSION
A. Standard of Review
The superior court has broad discretion in child custody cases. The superior court's custody determination will only be set aside if the court abused its discretion or its findings of fact are clearly erroneous. A court abuses its discretion if it considers improper factors in making its custody determination, fails to consider statutorily mandated factors, or assigns disproportionate weight to particular factors while ignoring others. Findings of fact are clearly erroneous when we are left with a definite and firm conviction that a mistake has been made, even though there may be evidence to support the finding. We review the superior court's decision to apply a particular legal standard using our independent judgment. B. The Superior Court Did Not Err by Awarding Shaun Increased Custody Without Finding a Significant Change in Circumstances.
Ebertz v. Ebertz, 113 P.3d 643, 646 (Alaska 2005).
Id.
Id.
Marine v. Marine, 957 P.2d 314, 316 (Alaska 1998) (citations omitted).
Melanie argues that the superior court may not alter its initial custody determination unless it finds a "significant change in circumstances." She claims that the court abused its discretion and committed clear error when it granted Shaun additional custody of their daughter without making such a finding. She asserts that Shaun's angry and controlling behavior, which had initially concerned the court, actually increased after the April 15, 2004 custody ruling.
Melanie argues that AS 25.20.110 requires a significant change in circumstances before the superior court may alter a child custody schedule. We conclude that AS 25.20.110 does not apply in this case. As we held in Deininger v. Deininger, the superior court may decide to gradually implement a custody schedule in order to provide stability and meet the needs of the child, even without finding a significant change in circumstances. Here, the court's August 12, 2004 order explained that the court might "modify the child's placement to shared physical custody" if Shaun fulfilled certain requirements. The superior court therefore did not abuse its discretion by altering its initial custody determination.
AS 25.20.110 states:
(a) An award of custody of a child or visitation with the child may be modified if the court determines that a change in circumstances requires the modification of the award and the modification is in the best interests of the child. If a parent opposes the modification of the award of custody or visitation with the child and the modification is granted, the court shall enter on the record its reason for the modification.
(b) When making a determination relating to child custody under (a) of this section, the court shall consider the past history of the parents with respect to their compliance with the child support payment provisions of temporary or permanent support orders or agreements relating to the child or to other children. Under this subsection, the court may consider a parent's failure to pay child support only if the parent had actual knowledge of the amount of the child support obligation and had funds available for payment of support or could have obtained those funds through reasonable efforts, as determined by the court.
(c) In a proceeding involving the modification of an award for custody of a child or visitation with a child, a finding that a crime involving domestic violence has occurred since the last custody or visitation determination is a finding of change of circumstances under (a) of this section.
Deininger v. Deininger, 835 P.2d 449, 451 (Alaska 1992).
We also hold that the superior court did not abuse its discretion and did not commit clear error when it granted Shaun more time with his daughter. Melanie seems to argue that the court abused its discretion and committed clear error by not giving sufficient weight to evidence of Shaun's continuing behavior, which she characterizes as "aggressive, inappropriate[, and] controlling." The superior court found that although Shaun continued to have anger problems, he was not a danger to his child. Furthermore, the court wrote a carefully crafted order that addressed Melanie's concerns about potential difficulties in exchanging custody of their daughter, her extracurricular activities, and her sleeping arrangements. Most importantly, the superior court ordered Shaun to take his daughter to school while she was in his care, and thus addressed Melanie's repeated complaints that Shaun fails to take their child to school. Should these conditions be violated in the future, Melanie has recourse in the superior court.
C. The Superior Court Did Not Clearly Err in Characterizing Melanie's Behavior.
Melanie disputes the superior court's finding that she was "verbally and mentally abusive." She argues that "[i]n court cases where domestic violence has been proven, it is inappropriate to use the victim's reactions to years of abuse as a defense for the batterer's actions." In this, Melanie is correct. Victims of domestic violence who do not cast their eyes demurely to the ground or bite their tongues during or after the abuse are victims nonetheless.
But we cannot disturb the superior court's findings of fact unless they are clearly erroneous. And the clear error standard is difficult to meet. We will rarely disturb a superior court's finding that characterizes the behavior of a witness whom it had the opportunity to observe.
Adams v. Adams, 131 P.3d 464, 467 (Alaska 2006).
An appellate court does not have the opportunity to hear live testimony or observe the demeanor of trial witnesses, so it is ill-situated to second-guess trial courts. This is why clear error is the appropriate standard for reviewing findings of fact. By the same token, an affirmance of a trial court's finding does not establish that the appellate court would necessarily have made the same determination as the trial court if faced with the same evidence. The evidence of verbal abuse here, although scant, is legally sufficient to support the superior court's finding.
Id.
Moreover, the finding of verbal and emotional abuse has no practical effect here. The superior court did not find that Melanie perpetrated any acts of domestic violence. And it relied on the parties' inability to cooperate, not Melanie or Shaun's behavior, when it made its final custody determination. There is therefore no indication that the superior court's finding that Melanie was verbally and mentally abusive had any bearing on its final custody determination, or that reversing that finding would alter the outcome of the custody dispute. The alleged error is not prejudicial.
D. The Superior Court Gave Proper Weight to Applicable Statutory Factors.
Melanie argues that the superior court did not give sufficient weight to her daughter's religious needs and to the actual time she spent with each parent. We do not need to reach those arguments because they were not properly preserved below. Even if we consider them on the merits, however, the superior court did not abuse its discretion.
Hamilton v. Hamilton, 42 P.3d 1107, 1117 (Alaska 2002).
Although Melanie, at the June 21 hearing, requested custody of her daughter every Sunday, she presented no evidence about the child's religious needs at that hearing or at the later custody trial. After some discussion at the June 21 hearing, the parties agreed that 5 p.m. was the most convenient time to exchange custody of their daughter on Sundays. Melanie argues for the first time on appeal that this schedule should have been altered so that her daughter could spend at least half of her Sundays with her mother.
Even if this argument had been properly preserved, to date we have recognized a child's religious needs in a child custody dispute only when there is evidence that (1) the child is being exposed to a religious practice that is dangerous; or (2) the child has expressed a religious preference, being mature enough to make such a choice. There are no allegations of dangerous religious practices here. And the child here is not "mature enough to make a choice between a form of religion or the lack of it." In Hamilton v. Hamilton, we held that even seven-and nine-year-old children are not mature enough to make such a choice, and here the child is not yet seven years old.
Bonjour v. Bonjour, 592 P.2d 1233, 1239 — 40 (Alaska 1979) (holding that child custody statute requiring court to consider child's actual religious needs is constitutional).
Id. at 1240.
Hamilton v. Hamilton, 42 P.3d 1107, 1117 (Alaska 2002).
Regarding the actual time the child spent with each parent, Melanie did not raise her current objection at the trial level. Even if she had, permitting one parent to have summer visitation is a common custody arrangement. The superior court did not abuse its discretion by allowing their daughter to spend time with her father during the summer.
See, e.g., Ebertz, 113 P.3d at 646; Harris v. Westfall, 90 P.3d 167, 169 (Alaska 2004); Hamilton, 42 P.3d at 1118.
E. The Superior Court Did Not Commit Reversible Error in Applying AS 25.24.150 as Amended in 2004.
Melanie argues that the superior court abused its discretion by not applying AS 25.24.150 as amended in 2004. According to Melanie, if the court had applied
AS 25.24.150 as amended in 2004 reads in pertinent part:
(g) There is 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.
(h) A parent has a history of perpetrating domestic violence under (g) of this section if the court finds that, during one incident of domestic violence, the parent caused serious physical injury or the court finds that the parent has engaged in more than one incident of domestic violence. The presumption may be overcome by a preponderance of the evidence that the perpetrating parent has successfully completed an intervention program for batterers, where reasonably available, that the parent does not engage in substance abuse, and that 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 affects parenting abilities, or engages in substance abuse that affects parenting abilities, or because of other circumstances that affect the best interests of the child. . . . .
(j) If the court finds that a parent has a history of perpetrating domestic violence under (g) of this section, the court shall allow only supervised visitation by that parent with the child, conditioned on that parent's participating in and successfully completing an intervention program for batterers, and a parenting education program, where reasonably available, except that the court may allow unsupervised visitation if it is shown by a preponderance of the evidence that the violent parent has completed a substance abuse treatment program if the court considers it appropriate, is not abusing alcohol or psychoactive drugs, does not pose a danger of mental or physical harm to the child, and unsupervised visitation is in the child's best interests.
AS 25.24.150, Shaun would not have been granted joint legal or physical custody. She further argues that "joint physical custody" should be defined as a schedule under which both parents have at least thirty percent custody, as opposed to the fifty-fifty definition applied by the superior court. Finally, she argues that the superior court erred in finding that Shaun's anger management course met the statutory requirements for an "intervention program for batterers."
We assume without deciding that AS 25.24.150 as amended applies to any case in which the battering parent was given notice and an opportunity to rebut the statute's presumption against custody. In previous cases we have declined to apply the statute because it either had come into effect after the close of evidence, or was invoked after the court had entered a final custody order based on the parties' agreement.
Van Sickle v. McGraw, 134 P.3d 338, 341 (Alaska 2006).
Ginn-Williams v. Williams, 143 P.3d 949, 953 — 54 (Alaska 2006).
Melanie first asserts that the 2004 amendment to AS 25.24.150 "sets forth a rebuttable presumption that anyone who has been the perpetrator of domestic violence shall not receive primary or shared legal or physical custody." Although she is correct that the statute creates a presumption that a person with a "history of domestic violence" should not have joint or sole physical or legal custody, she does not explain how this presumption may be rebutted, or how Shaun failed to do so. She also seems to argue that the superior court failed to apply AS 25.24.150 as amended, but in this, she is incorrect. The superior court found in its final child custody order that if the statute applied, Shaun had overcome the presumption.
AS 25.24.150(g) — (h), (j).
Melanie's briefing does not address how we should interpret AS 25.24.150(h), and the text of subsection .150(h) is not completely unambiguous in explaining what a "perpetrating parent" must do to overcome the presumption against custody. Because Melanie has not advanced any logical or legal arguments to support her position that AS 25.24.150(h) prohibits Shaun from having shared custody, we decline to reach that issue. Litigants who brief issues in a cursory manner without citing legal authority waive those issues.
This is true even if the litigant appears pro se. See Lee v. State, 141 P.3d 342, 352 n. 38 (Alaska 2006) (citing Peterson v. Ek, 93 P.3d 458, 464 n. 9 (Alaska 2004)).
Melanie next argues that the superior court erroneously defined "joint physical custody" as a "fifty-fifty" schedule. But any possible error of terminology is harmless. Because the superior court found that Shaun overcame the rebuttable presumption, it could award him joint physical custody. The terms "joint physical custody" and "shared physical custody" are undefined by the legislature or this court. Alaska Civil Rule 90.3 defines "shared custody" for the purposes of child support as an arrangement by which each parent has custody for at least thirty percent of the year, but this definition has never been applied to shared or joint physical custody in other contexts. We decline to decide what the legislature meant by "joint physical custody" in AS 25.24.150 as amended in 2004 because we do not need to reach the issue to decide this case.
Finally, Melanie argues that the superior court committed clear error when it found that the anger management program Shaun completed satisfied AS 25.24.150, which, since 2004, requires the completion of "an intervention program for batterers, where reasonably available." The statute does not define what the legislature meant by "an intervention program for batterers." Department of Corrections' regulations specify requirements for domestic violence treatment programs. But the potential applicability of these regulations has not been raised below or on appeal, and the legislature has not indicated that for the purposes of AS 25.24.150 those regulations should apply to persons with a history of domestic violence, or should apply outside the corrections context. We hold that because an administrator of Shaun's anger management program testified that the program addressed domestic violence as well as anger issues, the superior court did not clearly err in finding that the anger management program Shaun completed satisfied AS 25.24.150. Furthermore, it was not legal error to conclude that an anger management program that includes domestic violence counseling satisfies the statute.
AS 25.24.150(h).
See 22 Alaska Administrative Code (AAC) 25.010 — .090.
IV. CONCLUSION
We therefore AFFIRM.