Opinion
Supreme Court No. S-11331.
December 15, 2004.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Peter A. Michalski, Judge, Superior Court No. 3AN-01-9685 CI.
Gayle J. Brown, Anchorage, for Appellant.
Cris W. Rogers, Houston Houston, P.C., Anchorage, for Appellee.
Before: Bryner, Chief Justice, Matthews, Eastaugh, Fabe and Carpeneti, Justices.
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
I. INTRODUCTION
The superior court granted physical custody of Dalton Weekley to his father, Ronald Weekley, and visitation to his mother, Stacie Smith (now Stacie Siver). In Smith v. Weekley, ( Smith I), we remanded for a new custody determination, concluding that the superior court had placed too much weight on a single factor and had improperly given Smith the burden of proving circumstances that warranted modifying the original interim custody order. On remand, the superior court heard new evidence updating the parties' situation and again awarded custody to Weekley. Because the superior court's decision on remand addressed our original concerns, was based on substantial evidence, and properly applied the statutory requirements for determining Dalton's best interests, we affirm.
Smith v. Weekley, 73 P.3d 1219 (Alaska 2003).
II. FACTS AND PROCEEDINGS
In Smith I, we directed the superior court to redetermine Dalton's custody "based on all of the currently available evidence," declining to uphold the original custody order "[b]ecause it was error to accord a presumptive preference to Weekley based on the interim custody decision and because the court relied on one statutory best interests factor to the exclusion of all others." Our opinion summarized the factual and procedural history of the case; those details need not be repeated here.
Id. at 1227.
Id. at 1220-22.
On remand, the superior court heard evidence concerning the period since its original rulings. After evaluating the totality of the evidence in light of the best-interests factors listed in AS 25.24.150(c), the court determined that it would be in Dalton's best interests to remain in his father's custody.
Smith again appeals.
III. DISCUSSION
A. Supplemental Custody Investigation
At the outset of the hearing on remand, Smith asked the trial court to order an updated custody evaluation. The court left the issue open, stating that it would be better to "hear what the evidence that's available now is," since it might "inform [the court] sufficiently as to what's going on." After the hearing, the court reached its decision without ordering an updated custody investigation. Smith challenges this ruling, arguing that the court erred in failing to order a supplemental investigation.
Although she acknowledges that courts generally have discretion to forgo custody investigations, Smith argues that the superior court abused its discretion here because parental fitness was hotly disputed, a substantial period of time had passed since the original investigation, and new allegations of child abuse remained unresolved. Because of these circumstances, Smith contends, the court's refusal to order an updated investigation "was arbitrary, capricious, and manifestly unreasonable."
Weekley responds that a supplemental investigation was unnecessary, because the superior court heard sufficient testimony from both parties' witnesses to allow it to make an informed decision.
Our cases recognize that, because a custody report serves to assist the trial court in its decision, the court has broad discretion to determine whether a report would be helpful in a particular case. We will not find an abuse of discretion unless the trial court's decision is clearly unreasonable under the totality of the circumstances.
See Meier v. Cloud, 34 P.3d 1274, 1277 (Alaska 2001).
Id.
In this case, the superior court heard abundant evidence on remand supplementing the information already available in the original custody report. Smith called Roberta Gibson, who works as a court-appointed custody investigator. Although Gibson did not conduct the original investigation, she had recently interviewed Smith and visited her home in the course of another investigation. Gibson testified that the living conditions at Smith's home did not cause her any alarm with respect to children living there.
Smith also called Julianna Shields, a social worker with the Office of Children's Services. Shields had investigated a report that Weekley abused Dalton in early 2003. She had interviewed Dalton at school and Weekley and his current wife at home. In the course of these interviews, Weekley admitted that he occasionally spanked Dalton. Shields testified that she had advised Weekley not to use objects like belts for spanking. But Shields also testified that she believed that Dalton had been spanked only "at the very last resort when he acts out." According to Shields, upon completing her investigation, she concluded that the allegations of abuse were unfounded and closed the case without further action.
In addition to these witnesses, Weekley, Smith, and other family members and friends testified extensively on remand to update the court as to Dalton's well being. Having reviewed the record ourselves, we are unable to conclude that the trial court's refusal to order a supplemental report was "arbitrary, capricious, manifestly unreasonable, or . . . [stemmed] from an improper motive." The superior court did not abuse its discretion.
Sheehan v. Univ. of Alaska, 700 P.2d 1295, 1297 (Alaska 1997) (quoting Tobeluk v. Lind, 589 P.2d 873, 878 (Alaska 1985)).
B. Rejection of Original Custody Report's Recommendations
Smith next argues that the superior court abused its discretion in rejecting the original custody report's recommendations. She insists that "in light of the lack of any other thorough investigation or expert testimony on the `best interests of the child,'" the court's refusal to accept the original report's findings amounted to an abuse of discretion.
We have held that a court may reject a custody investigator's recommendations and draw on other evidence to form its own views as long as the court's findings are not clearly erroneous. The ultimate question, then, is not whether the court was bound by the custody report's recommendations but whether the evidence as a whole supports the court's custody ruling. Since Smith argues that issue as a separate point on appeal, we turn to those arguments.
Rooney v. Rooney, 914 P.2d 212, 219 (Alaska 1996).
C. Custody Findings on Remand
Smith next argues that the superior court's decision on remand misapplied the statutory best-interests factors and that the evidence fails to support the court's custody findings. Noting that Smith I remanded the case for a new custody determination because the original custody findings relied exclusively on a single best-interests factor, Smith insists that the superior court relied exclusively on the same factor again, merely mentioning the other statutory factors "in passing."
Smith I, 73 P.3d at 1226.
We have previously held that a trial court need not specifically address all the statutory factors detailed in AS 25.24.150(c) or explicitly make "ultimate findings" concerning the relative weight of these factors, as long as the findings that the court actually makes "either give us a clear indication of the factors which the superior court considered important in exercising its discretion or allow us to glean from the record what considerations were involved." Here, a review of the record establishes that the superior court did address each best-interests factor and that it specifically indicated the ones it considered important.
Although AS 25.24.150(c) has since been amended, at the time the superior court issued its findings, AS 25.24.150(c) provided in relevant part:
In determining the best interests of the child the court shall consider:
(1) the physical, emotional, mental, religious, and social needs of the child;
(2) the capability and desire of each parent to meet these needs;
(3) the child's preference if the child is of sufficient age and capacity to form a preference;
(4) the love and affection existing between the child and each parent;
(5) the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;
(6) the desire and ability of each parent to allow an open and loving frequent relationship between the child and the other parent;
(7) any evidence of domestic violence, child abuse, or child neglect in the proposed custodial household or a history of violence between the parents;
(8) evidence that substance abuse by either parent or other members of the household directly affects the emotional or physical well-being of the child;
(9) other factors that the court considers pertinent.
Borchgrevink v. Borchgrevink, 941 P.2d 132, 137 n. 2 (Alaska 1997).
With respect to the first two best-interests factors — "physical, emotional, mental, religious and social needs of the child" and "the capability and desire of each parent to meet these needs" — Smith argues that there was little evidence presented as to what Dalton's needs might be and that the court essentially ignored Dalton's needs except in finding that Smith's anger toward Weekley "made her less capable . . . of meeting those needs." But the record reveals more than this.
AS 25.24.150(c)(1).
AS 25.24.150(c)(2).
The court specifically addressed Smith's failures to communicate with Dalton's school regarding his educational progress. It also noted that Smith's own testimony revealed that she was "overwhelmed by the burdens of her life." Evidence indicated that Smith had experienced difficulty in driving Dalton back and forth from her home in the Matanuska valley and had recently been burdened by having to care for her husband after he was injured in an airplane accident. The court found these problems to be "major physical, emotional, and energy drain[s] on [Smith]."
The court similarly addressed problems that Weekley might face in providing for Dalton's needs. The court noted Weekley's generally negative attitude toward women, finding that this gender bias had "bad effects on Dalton." In fact, the court emphasized that it "totally rejects and finds abhorrent the gender bias which the child has picked up, presumably from his dad." At the same time, however, the court noted that Smith had shown significant anger toward the Weekleys. In the court's view, Smith's particularized disparagement of Weekley and his family had a worse effect on Dalton than Weekley's general disparagement of women. The court also observed that Weekley was taking Dalton to counseling. These findings appear to be thorough and balanced.
As to the third best-interests factor — Dalton's "preference if [he] is of sufficient age and capacity to form a preference" — the court concluded that it would attach "little weight to this [factor] given the child's age." It further surmised that Dalton's preference to live with his mother seemed understandable, since he "would not want to cross her." Smith challenges the latter remark as unsupported. But this passing comment played no significant role in the custody decision, since the court expressly declined to give any significant weight to Dalton's preference in any event because of his age.
AS 25.24.150(c)(3).
Smith next argues that the fourth statutory factor — "the love and affection existing between the child and each parent" — "could not have been properly used to justify a grant of custody to Mr. Weekley." But the superior court did in fact find that this factor was not determinative, noting that both parents loved Dalton and that Dalton loved both of them. The record provides no indication that the court improperly tipped this factor in Weekley's direction.
AS 25.24.150(c)(4).
Smith also challenges the superior court's reliance on the fifth factor — "the length of time the child has lived in a stable, satisfactory environment." In Smith I, we ruled that the superior court had improperly presumed that Dalton's best interests would be served by preserving the interim custody arrangement. Given this ruling, Smith argues here that even the slightest reliance on the fifth factor in the superior court's decision on remand "must be considered highly problematical" because Weekley has now enjoyed the advantage of three years of custody under the interim order without a proper best-interests finding ever having been made. But our decision in Smith I simply faulted the presumptive significance the court attributed to Dalton's interim placement. In remanding for further proceedings, our decision called for the superior court to cure this error by considering all relevant best-interests factors. Thus, Smith I did not preclude a balanced consideration of Dalton's need for stability.
AS 25.24.150(c)(5).
On remand, the superior court made clear in its findings that "the court is not treating the issue of `stable environment and the parent's ability to provide' such as creating a burden on any party to show changed circumstances." The court proceeded to find that both parents were capable of providing suitable homes. And its findings provide no indication that it presumptively placed inappropriate weight on this factor merely because of the existing arrangement. The court's findings on this point provide no basis for challenging its decision on remand.
Addressing the sixth factor — "the desire and ability of each parent to allow an open and loving frequent relationship between the child and the other parent" — Smith accuses the trial court of ignoring the evidence concerning Weekley's behavior and unfairly applying "a double standard" by faulting her own behavior. But the record contains mixed evidence on this issue. On the one hand, the court heard evidence that Weekley had never informed Smith where Dalton was receiving his counseling. The court also heard testimony concerning Weekley's gender bias, an attitude that the court recognized as abhorrent. On the other hand, the court heard testimony concerning Smith's anger toward the Weekleys, which sometimes occurred in Dalton's presence.
AS 25.24.150(c)(6).
In the end, the court found the greatest concern to be Smith's hostility toward the Weekleys and her inability to conceal her feelings from Dalton. Smith maintains that the superior court assigned disproportionate weight to her anger. But the record contains substantial evidence to support the superior court's finding; and the trial court, not this court, has the responsibility for determining the weight of this evidence in relation to the evidence tipping against Weekley.
With respect to the seventh factor — "evidence of domestic violence [or] child abuse" — the court found "no ongoing domestic violence between the parties" except for an altercation between Smith and Weekley's current wife. The court blamed Smith for this incident and described it as an example of her inability to conceal her hostility toward the Weekleys. Smith argues that there is no evidence to support these findings. Yet our review of the record persuades us that the evidence regarding this incident was in conflict. The superior court resolved the conflict in Weekley's favor. In situations involving conflicting testimony, we cannot substitute our own view of the facts for the trial court's.
AS 25.24.150(c)(7).
Finally, as the last best-interests factor — "substance abuse" — the court found no evidence indicating a need for concern. Smith does not dispute the issue.
AS 25.24.150(c)(8).
Based on the totality of the evidence supporting its best-interests findings, the superior court determined that Dalton's best interests would be served by awarding primary physical custody to Weekley. In reviewing these findings, we must "accord substantial deference to [the superior court's] decision and rely on its judgment in close cases when substantial evidence supports both sides." It is not our function to determine the relative weight of competing evidence or to independently decide issues of credibility; these matters must be decided by the trial court. Our duty of appellate review empowers us to reverse the trial court's findings as clearly erroneous only when, "after a review of the entire record, we are left with a definite and firm conviction that a mistake has been made."
Dingeman v. Dingeman, 865 P.2d 94, 96 (Alaska 1993).
Knutson v. Knutson, 973 P.2d 596, 599-600 (Alaska 1999).
Demoski v. New, 737 P.2d 780, 784 (Alaska 1987).
Here, the superior court's findings are supported by substantial evidence, and our review of the entire record does not convince us that a mistake has been made. Even though the conflicting evidence might also have supported a different decision, we cannot say that the challenged findings are clearly erroneous. Nor can we say, based on these findings, that the superior court abused its discretion in deciding to award custody to Weekley.
IV. CONCLUSION
We therefore AFFIRM the superior court's order.