Opinion
Supreme Court No. S-11627 / 11657, No. 1244.
March 29, 2006.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Kenai, Harold M. Brown, Judge, Superior Court No. 3KN-02-678 CI.
Carol A. Brenckle, Kenai, for Appellant/Cross-Appellee.
Michael L. Silverman and Mark Regan, Alaska Legal Services Corporation, Anchorage, for Appellee/Cross-Appellant.
Before: Bryner, Chief Justice, Matthews, Eastaugh, Fabe, and Carpeneti, Justices.
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
I. INTRODUCTION
After living together for twelve years, Sherwood Williams and Darlene Ross separated but could not agree to a custody arrangement for their two children. The superior court ordered the parties to share legal custody, but awarded primary physical custody of the children to Ross. Both parties appeal. Williams challenges the court's physical custody award, arguing that many of the court's best-interests findings were erroneous. Because the superior court's findings involve no clear error or abuse of discretion, we affirm the court's physical custody award.
Ross cross-appeals the court's legal custody award. She argues that the court should have applied a newly enacted statutory presumption against awarding custody to a parent who has a history of domestic violence. Because Ross never argued that domestic violence should have been a controlling factor in the court's decision, did not draw the court's attention to the presumption until well after evidence in the case had closed, and never moved to reopen the case for additional proceedings or briefing, we hold that Ross did not preserve the issue for appeal.
II. FACTS AND PROCEEDINGS
Sherwood Williams and Darlene Ross lived together from approximately 1990 until they separated in February 2002. They never married but had two children, a son and a daughter.
About three months after the couple separated, Ross was arrested for driving while intoxicated. Her son was in the car at the time. Ross pled no contest to the DWI charge and later attended substance abuse education classes.
In the spring of 2002 Ross sought a domestic-violence restraining order against Williams. The court issued a long-term order finding that Williams had committed a crime involving domestic violence.
In August 2002 Williams filed a complaint against Ross for sole legal and primary physical custody of their children. Ross answered and counterclaimed, asking for sole legal and primary physical custody. The court consolidated the still-pending domestic violence proceeding with the new custody action. After holding an evidentiary hearing, the court awarded interim custody of the children to Ross and assigned a child custody investigator to the case. The investigator issued a report recommending shared legal and evenly divided physical custody — provided that Williams could acquire suitable housing.
The parties tried the custody issue in May 2004; seven witnesses testified: Williams, Ross, the custody investigator, an acquaintance of Ross's, a nurse practitioner who had treated Ross after her DWI, and two of the children's school teachers. In addition, the court considered testimony given by several witnesses at the interim custody hearing: Williams, Ross, Ross's adult son and daughter from a previous relationship, Ross's daughter-in-law, an intake worker from the Division of Family and Youth Services, and the Alaska State Trooper who had arrested Ross for driving while intoxicated. Williams abandoned his request for sole physical custody and argued for evenly divided custody instead. The court took the case under advisement and ordered the parties to file briefs.
The parties filed their post-trial briefs in early June 2004.
Three weeks later, on July 1, 2004, a recently enacted amendment to AS 25.24.150 came into effect, creating a "rebuttable presumption that a parent who has a history of perpetrating domestic violence . . . may not be awarded . . . custody of a child." On July 20 Ross filed a notice of supplemental authority, citing the amendment as a relevant change. Williams filed a response in which he argued that retroactive reliance on the new presumption would violate his due process rights. He also argued that domestic violence "was never the focus of this case."
AS 25.24.150(g).
In August 2004 the superior court issued a memorandum opinion that awarded shared legal custody to the parties, but gave primary physical custody to Ross and established a visitation schedule allowing Williams to have weekend, summer, and holiday visits, including half of Christmas Day each year. The court noted that the new statutory presumption had "no impact" on its decision and "should not be applied retroactively to this case."
Williams appeals the court's physical custody and Christmas-visit awards. Ross cross-appeals the award of shared legal custody.
III. DISCUSSION
A. Williams's Appeal
Williams argues that the superior court erred in awarding primary physical custody to Ross and in limiting his Christmas visitation to half-day visits. He challenges a number of the superior court's best-interests findings, claims that the court erred in rejecting the custody investigator's recommendations, and contends that it should have allowed the usual Christmas visitation.
1. Best-interests findings
Alaska Statute 25.24.150(c) requires custody decisions to be based on the best interests of children and lists nine factors for courts to consider in determining children's best interests. Williams argues that the superior court erred in addressing these factors and placed disproportionate emphasis on its finding that Ross would be better able to meet the children's educational needs.
At the time this case was submitted to the superior court for decision, AS 25.24.150(c) required it to 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; and
(9) other factors that the court considers pertinent.
As of July 1, 2004, paragraph (c)(6) was amended to require consideration of:
the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child, except that the court may not consider this willingness and ability if one parent shows that the other parent has sexually assaulted or engaged in domestic violence against the parent or a child, and that a continuing relationship with the other parent will endanger the health or safety of either the parent or the child.
Because trial courts have broad discretion and deserve substantial deference in determining child custody, we will set aside a custody order only if the court abused its discretion or made findings of fact that are clearly erroneous. A trial court abuses its discretion when 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." A court's factual findings are clearly erroneous when our review of the entire record leaves us "with a definite and firm conviction . . . that a mistake has been made." We "do not readily second guess a trial court's custody determination," since it is "the function of the trial court, not of this court, to judge witnesses' credibility and to weigh conflicting evidence."
Smith v. Weekley, 73 P.3d 1219, 1222 (Alaska 2003); Dingeman v. Dingeman, 865 P.2d 94, 96 (Alaska 1993).
See Hamilton v. Hamilton, 42 P.3d 1107, 1111 (Alaska 2002).
Barrett v. Alguire, 35 P.3d 1, 5 n. 5 (Alaska 2001) (citing Borchgrevink v. Borchgrevink, 941 P.2d 132, 134 (Alaska 1997)).
Jenkins v. Handel, 10 P.3d 586, 588 (Alaska 2000) (citing Dingeman, 865 P.2d at 96).
Dingeman, 865 P.2d at 96.
Knutson v. Knutson, 973 P.2d 596, 599-600 (Alaska 1999).
Here, our review of the trial court's best-interests findings and conclusions reveals no clear error or abuse of discretion.
The first two statutory factors are "the physical, emotional, mental, religious, and social needs of [each] child" and "the capability and desire of each parent to meet these needs." The superior court found both parents to be capable of meeting the children's physical, mental, religious, and social needs, but found that Ross "has had the primary responsibility for raising [the] children" and is the "better parent when it comes to meeting the children's educational needs." The court found that Williams "is not capable of or inclined to require either of [the] children to devote the time and energy necessary to successfully complete their schooling." It also observed that he "does not help with homework" and "does not attend parent-teacher conferences." Emphasizing that the couple's daughter "needs to be motivated and disciplined to participate in school," the court found Ross's superior ability to meet the children's educational needs to be a "most important factor" in making its decision. The court also found that, despite Ross's DWI conviction, she "behaves as a responsible parent"; in the court's view, her "potential abuse of alcohol" was not a "major factor" in its decision.
AS 25.24.150(c)(1).
AS 25.24.150(c)(2).
These findings are all supported by substantial evidence. Ross's adult daughter, Kristen Braud, testified at the interim custody hearing that Ross has long been the primary caretaker of the couple's children: she prepares their meals, sees to their hygienic needs, provides needed discipline, and single-handedly helps them with homework.
The nurse-practitioner who treated Ross after her DWI testified that she saw no signs of heavy alcohol use. And a friend who had known Ross for several years testified that she did not believe that Ross has a problem with alcohol and that on several occasions she had entrusted her own son to Ross's care. Ross's friend also testified that she had never seen Ross drunk.
Regarding the parents' capacity to provide for their children's educational needs, Williams admitted having missed parent-teacher conferences for a number of years. The children's teachers confirmed that they had never met or interacted with Williams. And the child custody investigator reported that Williams "does not believe he should have to use his visitation time on homework."
Moreover, the court also heard other evidence that favored Ross — for example, testimony to the effect that Ross was actively working to improve her daughter's performance at school. Considering the totality of the record, we conclude that substantial evidence supports the court's findings under the first two best-interest factors.
The third factor the court considered was "the child[ren]'s preference if the child[ren] [are] of sufficient age and capacity to form a preference." The court found that the children had not expressed a preference. Williams argues that this finding is clearly erroneous because the couple's daughter told the custody investigator that she would like "one week on and one week off" with each parent. But this argument ignores the custody investigator's opinion of the daughter's ability to make such a choice: the investigator said that the children "do not have the capacity to understand the long-term ramifications of a custody placement or visitation schedule." Given this opinion, the trial court did not clearly err in concluding that the children had expressed no meaningful preference.
AS 25.24.150(c)(3).
The court next considered "the love and affection existing between the child[ren] and each parent," finding that love and affection exists between the children and each parent. This finding is undisputed.
AS 25.24.150(c)(4).
The court then considered "the length of time the child[ren] ha[ve] lived in a stable, satisfactory environment and the desirability of maintaining continuity." It found that "both parents are fully capable of providing a stable satisfactory environment" but noted that Williams was not inclined to provide adequate discipline. These findings find direct support in Ross's and Braud's testimony that Williams has historically failed to provide the children with discipline.
AS 25.24.150(c)(5).
Williams also argues that, in applying this factor, the superior court impermissibly gave Ross a "presumptive preference" merely because she had enjoyed the advantage of interim custody. In support of this argument, Williams cites Carle v. Carle, where we stated: "While there might be some preference for leaving the child in the custody of the person with whom he has most recently and continuously resided, we decline to establish such a presumption lest it lead to pre-hearing maneuvering for possession of the child." But Williams's reliance on Carle is misguided, because the trial court here made no reference to interim custody. And substantial evidence showed that Ross had been the children's primary caretaker throughout their lives, not just while she had interim custody — a fact that the superior court could properly consider.
503 P.2d 1050, 1053 n. 6 (Alaska 1972) overruled on other grounds by statute as noted in Deivert v. Oseira, 628 P.2d 575, 579 (Alaska 1961).
The sixth factor the court considered is "the desire and ability of each parent to allow an open and loving frequent relationship between the children and the other parent." While the court found there was "some evidence that Ms. Ross interfered with Mr. Williams' right of visitation during the period following their separation," it ultimately declined to give weight to this evidence because other evidence showed that "Ross ha[d] been cooperative over the last many months." The court's finding is supported by Ross's testimony that she had made the children available to Williams outside of the court's visitation schedule in order to accommodate Williams's erratic work schedule. Although Williams insists that the trial court's reliance on Ross's testimony "completely disregards" his own contrary testimony, this argument is unpersuasive because, as we have already noted, "it is the function of the trial court, not of this court, to judge witnesses' credibility and to weigh conflicting evidence." The trial court here could properly find Ross's testimony to be more credible than Williams's.
See former AS 25.24.150(c)(6) (amended July 1, 2004).
Knutson, 973 P.2d at 599-600.
The seventh and eighth factors the court considered were "any evidence of domestic violence, child abuse or child neglect in the proposed custodial household or a history of violence between the parents" and "evidence that substance abuse by either parent or other members of the household directly affects the emotional or physical well-being of the children." The court found that all incidents of abuse and neglect were "historic" and that the potential for future incidents had "declined to a point where it is no longer a factor in this case." On the issue of substance abuse, the court noted "some evidence of substance abuse by Ms. Ross" but declined to attach overriding significance to this evidence. Williams accuses the court of improperly minimizing the substance-abuse issue by failing to recognize the significance of Ross's DWI and by disregarding other evidence of her continued drinking. But the court heard conflicting evidence on this point, and our review of the record does not convince us that its overall assessment of the evidence concerning Ross's substance abuse was clearly erroneous.
AS 25.24.150(c)(7).
AS 25.24.150(c)(8).
Williams also suggests that the court erred by failing to consider whether Ross has "unmet mental health issues that are directly related to her problem with alcohol." Cf. AS 25.24.150(c)(9) (the court shall consider "other factors that the court considers pertinent"). Williams presented no evidence that Ross suffers from a mental impairment and did not argue this point below. Given these circumstances, the trial court had no duty to address this issue sua sponte.
In summary, the trial court's best-interests findings are supported by substantial evidence, address all the required statutory factors, do not give improper or disproportionate weight to any single factor, and reveal no abuse of discretion.
2. Child custody investigator's recommendations
Williams next argues that the superior court erred as a matter of law by rejecting the custody investigator's recommendations. But as we have held on prior occasions, custody investigators are "simply expert witnesses [and their] recommendations should be evaluated on a case-by-case basis, in the same manner as testimony presented by other witnesses." Because investigators' reports merely "assist [a] trial court in its decision," the court may "reject a custody investigator's recommendations and rely on other evidence, as long as the court's findings are not clearly erroneous." "The critical question, then, is not whether the superior court erred in rejecting the custody investigator's proposed decision, but whether the evidence as a whole supports the court's decision." Having already answered this question in our review of the trial court's best-interests findings, we hold that the trial court did not err in departing from the custody investigator's recommendations.
Ebertz v. Ebertz, 113 P.3d 643, 648 (Alaska 2005).
Meier v. Cloud, 34 P.3d 1274, 1277 (Alaska 2001).
Ebertz, 113 P.3d at 647 (citation omitted).
Cf. id. at 647-48.
3. Christmas visitation
Williams argues that the superior court inappropriately limited his Christmas visitation by allowing him to have only half-day visits with the children each Christmas Day. As Ross correctly notes, however, Williams made no specific requests below concerning Christmas visitation; moreover, he did not object to the Christmas schedule that the trial court ultimately ordered, so he cannot properly raise this issue for the first time on appeal. Furthermore, Williams has also failed to explain why the disputed order amounts to an actual hardship; and he has cited no authority suggesting that the visitation schedule should be presumed improper as a matter of law. Instead, Williams merely advances a conclusory and unsupported assertion that the visitation order is unusual and departs from established practice. On this record, we see no basis for finding reversible error. B. Ross's Cross-Appeal
See O'Neill Investigations, Inc. v. Illinois Employers Ins. of Wausau, 636 P.2d 1170, 1175 n. 7 (Alaska 1981) ("As a general rule parties cannot advance new theories or raise new issues in order to secure a reversal of [a] lower court's determination.").
Cf. Alden H. v. State, Office of Children's Servs., 108 P.3d 224, 227-28 (Alaska 2005) ("Issues not raised in the trial court shall not be considered on appeal, except for plain error.") (further citations omitted).
On cross-appeal, Ross argues that the superior court erred in failing to apply the recently amended version of AS 25.24.150, which became effective on July 1, 2004, and created a rebuttable presumption against awarding custody to any parent with a "history of perpetrating domestic violence." As already noted above, the superior court ruled that this amendment had "no impact" on its decision and that it should not apply retroactively "to this case." Although Ross assumes that this amounts to a broad ruling on the amendment's retroactivity, we read it as a case-specific determination based on the procedural circumstances at issue here.
AS 25.24.150(g) provides:
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.
The trial in this case ended, and evidence closed, on May 13, 2004; the parties filed post-trial briefs in early June; and at that point the case was submitted for decision. The amendments came into effect three weeks later. Before submitting the case for decision, neither party had mentioned the impending amendment in their pleadings, arguments, or briefing. Although both parties did discuss domestic violence in their final memoranda, neither suggested that it should be a controlling factor.
Ross did call the court's attention to the presumption in a cursory notice of supplemental authority filed on July 20 — a full six weeks after the case was submitted for decision. But Ross did not move to reopen the case for additional argument or supplemental briefing on the newly effective presumption; nor did she ask for an evidentiary hearing or offer evidence to trigger the presumption. She simply notified the court that the new law was now in effect and that it was "relevant."
Given these circumstances, we hold that the superior court did not err in finding that the newly enacted presumption had no impact on its decision.
We intimate no view on the general question of the application of the amended version of AS 25.24.150 to incidents of domestic violence occurring before the effective date of the amendment.
IV. CONCLUSION
We thus AFFIRM the superior court's judgment.