Opinion
Supreme Court No. S-13982.
August 24, 2011.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Eric A. Aarseth, Judge, Superior Court No. 3AN-07-04979 CI.
Appearances: Aras J. Worthington, pro se, Anchorage, Appellant. Katherine F. Worthington, pro se, College Station, Texas, Appellee.
Before: Carpeneti, Chief Justice, Fabe, Winfree, and Christen, Justices. [Stowers, Justice, not participating.]
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
The superior court denied a father's custody modification motion regarding two of his four children. The court granted the father's motion to temporarily reduce child support payments for one child who, by agreement of the parties, was living with him for five months beyond the normal visitation periods, and sanctioned the mother for interfering with his visitation with another child. The father appeals. We affirm the superior court's decision in all respects.
II. FACTS AND PROCEEDINGS
A. Facts
Aras and Katherine Worthington are the parents of four children, three daughters and one son. In March 2007 the superior court issued a marriage dissolution decree for Aras and Katherine, approving their agreement for joint legal and shared physical custody and for child support.
In August 2008 Katherine relocated to Texas. In November the superior court issued a supplemental custody order (2008 custody order) maintaining joint legal custody but granting Katherine primary physical custody and directing that the children would live with Katherine in Texas during the school year and with Aras in Anchorage during the summer. The superior court also issued a new child support order. Because Aras's income was over $100,000, the superior court used the Alaska Civil Rule 90.3(c)(2) support limit, calculating that Aras owed $2,775 monthly for all four children.
B. Proceedings
1. The parents' motions
In July 2009 Katherine moved to amend the 2008 custody order, seeking in part to require each parent to disclose information regarding the children when the other parent requested it and to limit communications between the parents to those necessary to care for the children. Aras opposed most of Katherine's motion. Aras outlined his perceptions of Katherine's co-parenting deficiencies and her failures to provide him information about the children. He alleged Katherine was not providing the children adequate health and hygienic care because when the children arrived in Anchorage during the summer of 2009: (1) three of them had contracted a serious infection in the fall of 2008 and had not received adequate medical care; (2) the two youngest children had severe lice infestations; and (3) the two youngest children had dental problems requiring treatment.
In October 2009 Aras filed a motion to modify custody, seeking primary physical custody of and child support for the two youngest children, the son and a daughter. Aras reiterated his allegations that Katherine failed to adequately co-parent, provide him information, and provide the children adequate health and hygienic care. Katherine opposed the motion, outlining her view of the parents' inability to amicably co-parent and stating the children were all healthy.
Under the terms of the 2008 custody order, the children were to spend their Christmas breaks with Aras, in addition to their summers. Pursuant to this order, Katherine sent the children to Anchorage prior to Christmas 2009. The youngest daughter, who arrived on December 17, asked to remain with Aras for the spring semester of school. Katherine agreed to the daughter's request, and an arrangement was reached for her to remain with Aras until she went to summer camp, then return to Katherine in Texas on August 15, 2010, for the next school year.
In February 2010 Aras filed a motion for an order to show cause, alleging Katherine interfered with his visitation with the oldest daughter during the 2009 Christmas break. Katherine responded that she did not deliberately interfere with Aras's visitation. In opposition to a separate motion filed around this time but not at issue on appeal, Katherine attached a letter that Aras wrote to the two oldest daughters, discussing in part events leading up to and following the parents' dissolution, the custody proceedings, child support, and Katherine's lack of communication with him.
In April 2010 Aras filed another motion to modify custody, again seeking custody of the two youngest children. Because the youngest daughter was living with Aras, he also sought to modify his child support obligation for December 17, 2009, through August 15, 2010. Aras submitted a child support affidavit and child support calculation form based on hybrid custody. Katherine opposed this motion, arguing the court should not modify child support but indicating her willingness to reimburse Aras for the daughter's extended visitation.
2. The June 2010 hearing
In June 2010 the superior court held a hearing to address the motions. Both Aras and Katherine testified.
a. Testimony regarding health care
Aras testified that in the summer of 2009 the two youngest children complained of toothaches, both required tooth fillings and one required an extraction, and both told him Katherine did not take them to the dentist. He stated the two youngest children had head lice and "had it for a long time in Texas," but Katherine never told him that she had treated the children for lice. He stated that when the children had infections Katherine did not tell him and that she sought medical treatment for only one of the children. Aras said the day before the hearing the son complained of a toothache and said he had not been to a dentist since Aras took him the previous summer. Aras also said Katherine told him she took the son to the dentist two months before the hearing.
Katherine testified that she was not a negligent parent and that the children's conditions were not life-threatening. She said "the children are all very healthy right now." Katherine did not testify whether she knew about the children's previous health issues or told Aras about them.
b. Testimony regarding each parent's ability and desire to support the other's relationship with the children
Aras testified Katherine interfered with his visitation on multiple occasions. Aras explained that Katherine once came to his house unannounced around 10:00 p.m. and "lured [the son] out into the driveway." Aras also discussed Katherine's interference with his 2009 Christmas break visitation with the oldest daughter. According to Aras, prior to the daughter coming to Anchorage: she asked to visit friends in Minnesota over a portion of the break; Aras asked her for details but she replied in an email with only a statement that she was leaving Anchorage a week early; Aras again asked for more information and said that he did not think he would allow her to go; Aras emailed Katherine explaining the issue, and he said she replied that he did not have her cooperation. The oldest daughter traveled to Anchorage with her siblings, but on December 22 Aras sent Katherine a text message saying things were not going well with the oldest daughter and wondering if he should send her back to Texas. On Christmas night the oldest daughter left Aras's house. Aras called Katherine, who told him it was none of his business where the daughter was, but that she was fine. Eventually Aras contacted the Anchorage Police Department, who called Katherine. Aras said Katherine told the police that she knew where the daughter was but that it was none of Aras's or the police's business. By the time Aras learned the daughter's location, she had returned to Katherine in Texas.
When questioned by the court about the Christmas visitation incident, Katherine said she had known the daughter's plans but did not initially share the details with Aras because Katherine wanted Aras to talk to the daughter directly. Katherine did not remember reading the email Aras sent her. Katherine also testified about this incident, defending her actions and asserting that once she knew the police were involved, she felt she provided "a safe alternative to [the daughter] being held in police custody."
Aras repeatedly testified that he tries to communicate with Katherine, but gets little or no response. Katherine testified that when she tries to communicate with Aras, he treats her negatively and seeks conflict. Katherine expressed concerns that there was "a fair amount of slander" of her in Aras's home, including extended family members telling the children Katherine was not a good parent. Katherine testified she had a safety net of friends in Anchorage to ensure the children were okay when they stayed with Aras. She also testified that two of the children were "uncomfortable" after Aras asked them to return their keys to his house out of worry that Katherine might copy them.
c. Other testimony
Aras testified that he loved spending time with the children and, even though he worked, he spent his time off with them. Aras acknowledged the children "seem to enjoy their mother" and that they had a "good relationship in and of itself" with Katherine. Aras said the children were "close with each other" but "they don't seem to mind being apart either." Katherine said the children needed to stay together, were "very happy together" as well as "extremely close," and voluntarily spent time together.
Katherine testified the children were "doing very well with [her] and . . . the movement to [Aras's] household and visitation time with him and his family caused them a great deal of stress, conflict, [and] pain," requiring her to mitigate their issues when they returned home. She stated that she has "extremely good communication with [her] children and they thrive." Aras said the children were developing appropriately educationally, psychologically, developmentally, and socially.
Aras testified the two oldest daughters wanted to live with their mother and that the youngest daughter had expressed a desire to return to Texas. Katherine agreed the three daughters wanted to live with her. Both parents acknowledged the son asked about staying with Aras during the fall of 2010, but Katherine said the son was unsure.
3. The court order
The court denied the majority of Katherine's motion to amend the 2008 custody order, but granted her information disclosure request. The court denied Aras's motion to modify custody. The court did not modify Aras's child support obligation, but granted Aras a $250 monthly child support credit (based on the incremental change from four children to three children) for the eight-month period between mid-December 2009 and mid-August 2010. The court sanctioned Katherine $1,000 for her interference with Aras's 2009 Christmas visitation with the oldest daughter.
4. The appeal
Aras appeals the superior court's rulings on child custody, child support, and the contempt sanction levied on Katherine.
III. STANDARD OF REVIEW
"We will not reverse a superior court's custody determination unless we are `convinced that the trial court abused its discretion or that its controlling factual findings are clearly erroneous.'" The superior court abuses its discretion in custody cases when it "fails to consider statutorily mandated factors, weighs factors improperly, or includes improper factors in its decision." We will not "readily second guess a trial court's custody determination because it is the function of the trial court, not of this court, to judge witnesses' credibility and to weigh conflicting evidence."
Williams v. Barbee, 243 P.3d 995, 1000 (Alaska 2010) (quoting Michele M. v. Richard R., 177 P.3d 830, 834 (Alaska 2008)).
Id.
Id. (quoting Michele M., 177 P.3d at 834).
We review decisions about guidance to pro se litigants for abuse of discretion. "We review child support awards and decisions to modify child support for an abuse of discretion." We review a trial court's decision to impose civil contempt sanctions for abuse of discretion, although we review the underlying factual findings for clear error.
Shooshanian v. Dire, 237 P.3d 618, 622 (Alaska 2010) (citing Snyder v. Am. Legion Spenard Post No. 28, 119 P.3d 996, 1001 (Alaska 2005)).
Rosen v. Rosen, 167 P.3d 692, 695 (Alaska 2007) (citing Faulkner v. Goldfuss, 46 P.3d 993, 996 (Alaska 2002)).
Matanuska Elec. Ass'n v. Rewire the Bd., 36 P.3d 685, 690 n. 4 (Alaska 2001) ("This court will reverse a trial judge's decision regarding contempt only if it is without evidentiary support or is an abuse of discretion." (citing Dale v. Dale, 534 S.E.2d 705, 707 (S.C. App. Ct. 2000))).
IV. DISCUSSION
A. Aras's Motion To Modify Custody
Aras argues the superior court erred by denying his motion to modify custody. Aras also argues the superior court erred by failing to provide more guidance to him and Katherine, as pro se litigants, and to inquire about essential facts.
1. Legal standards
The superior court may modify child custody under AS 25.20.110 "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." "The parent seeking modification must first establish that there has been a `significant change in circumstances affecting the child's best interests.'" "Once a party demonstrates a qualifying change in circumstances, the court will determine whether modification is in the best interests of the child." In determining the best interests of the child, the court must consider the factors listed in AS 25.24.150(c). However "[t]he trial court need only `discuss those factors that it considers actually relevant in light of the evidence presented in the case before it.'" 2. Significant change in circumstances and best interests analysis
AS 25.20.110(a).
Williams, 243 P.3d at 1000 (quoting Ebertz v. Ebertz, 113 P.3d 643, 647 (Alaska 2005)).
Id.
AS 25.20.110(g).
Virgin v. Virgin, 990 P.2d 1040, 1044 (Alaska 1999) (quoting Park v. Park, 986 P.2d 205, 206 (Alaska 1999)).
The superior court determined that none of the health issues Aras raised constituted a significant change of circumstances. But because the superior court implicitly determined the parents' inability to cooperate in parenting their children constituted a significant change in circumstances warranting consideration of the children's best interests, we do not need to decide, as Aras argues, whether the superior court erred in this determination.
The superior court weighed evidence regarding each parent's actions and noted: (1) Katherine undermined the oldest daughter's relationship with Aras by interfering with Christmas break visitation; (2) Katherine lacked respect for Aras, evidenced by the Anchorage "safety network" she put in place "to watch the father and the children," her monitoring of Aras's activities, and her unannounced visit with the son; (3) Katherine mocked Aras when he asked the children to return their keys before meeting with Katherine; and (4) Aras sent an inappropriate letter to the two oldest daughters blaming Katherine for family problems. The court concluded "neither parent has much to be proud of in terms of how they have presented the other to the children" and "a change in custody does not appear as if it would resolve any issues in this case." The superior court determined the two youngest children loved their mother and would remain with their older siblings. The court stressed that the children's stability in Texas must take priority.
Aras argues the superior court erred by: (1) implying "both parents had little to be proud of" but then providing only one example of misconduct by Aras and listing multiple examples of Katherine's misconduct; (2) failing to attach enough weight to evidence demonstrating Katherine withheld information from him and refused to communicate with him; (3) failing to attach enough weight to evidence demonstrating Katherine's "purposeful alienation of the children from" him; and (4) denying his modification motion after making findings in his favor.
We have repeatedly emphasized that "it is the function of the trial court, not of this court, to judge witnesses' credibility and to weigh conflicting evidence." Although Aras disagrees with how the superior court weighed the evidence in this case, the record supports the court's decision. There was evidence that each parent failed to support the other's relationship with the children, even if the court listed only one example for Aras and multiple examples for Katherine. For instance, Aras testified that Katherine did not communicate with him, but Katherine testified that when she did communicate with Aras he treated her negatively and sought conflict. There was also conflicting evidence regarding each parent's efforts to "purposeful[ly] alienate" the children from the other: although Aras testified about Katherine interfering with visitation, Katherine testified about people in Aras's house making negative comments about her to the children. Katherine also testified that she allowed the children extended visitation with Aras beyond what the court ordered, such as when she agreed to let the youngest daughter live with Aras and considered whether the son could live with Aras.
Williams, 243 P.3d at 1000 (quoting Michele M., 177 P.3d at 834).
The evidence also supports the superior court's best interests findings and its determination that Katherine should retain primary physical custody of the two youngest children. The court heard testimony about the love and affection between Katherine and the children. The court heard testimony that the children live in a "stable, satisfactory environment" with Katherine, evidenced by the children's appropriate development, and have done so during the school year since the fall of 2008 (except for the youngest daughter's time in Anchorage in spring 2010). There was evidence of "the desirability of maintaining continuity" because testimony indicated that the children "thrive" with Katherine but become stressed during visitation with their father. Testimony also demonstrated that the children are very close and should live together.
AS 25.24.150(c)(4) (requiring court to consider "the love and affection existing between the child and each parent").
AS 25.24.150(c)(5) (requiring court to consider "the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity").
Id.
AS 25.24.150(c)(9) (requiring court to consider "other factors that the court considers pertinent").
We conclude that the superior court did not abuse its discretion by denying Aras's custody modification motion.
3. Guidance to the pro se litigants
Aras argues the superior court erred by failing to provide more guidance to each pro se litigant and to inquire about essential facts. Aras asserts the court should have inquired more into the health issues and the best interests factors the court ultimately relied on in its decision.
We have held that "trial judges should take limited steps to mitigate the difficulty of representing oneself." But a trial court is not required "to instruct a pro se litigant as to each step in litigating a claim" because such involved assistance "would compromise the court's impartiality in deciding the case by forcing the judge to act as an advocate for one side."
Foshee v. Foshee, 145 P.3d 492, 498 (Alaska 2006) (citing Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987)).
Shooshanian, 237 P.3d at 624 (citing Breck, 745 P.2d at 75).
Although the superior court did not review with Aras and Katherine the legal requirements to demonstrate changed circumstances and the best interests factors, all of this information was stated in the standard court system motion to change custody form, which Aras completed and Katherine received, and the form's instructions.
See Pro Se Forms for Modifying Custody, Support or Visitation, Motion to Change Custody, Support or Visitation DR-705; Pro Se Forms for Modifying Custody, Support or Visitation, Instructions for Motion DR-701. Under the motion's "Change in Custody or Visitation" section, a note reads: "A change in custody will not be granted unless there has been a substantial change in circumstances since the last order was entered. Also, the requested change must be in the best interests of the children. See page 3 of the Instructions about `best interests.'"
The superior court provided Aras appropriate guidance throughout the hearing. For example, when Aras asked the superior court for guidance on what type of evidence the court would like to hear, the court told him he should identify issues, make factual assertions about what happened, and make any points Aras thought would support finding a change in circumstances. The court later clarified to Aras: "you need to explain to me why you think this is appropriate, why . . . you need these changes." At another point the court interrupted Aras, pointing out that Aras was making "conclusory statements," without providing any detail on how he reached his conclusions, and advising Aras that he needed to provide "specifics" regarding his concerns about Katherine's actions. At the close of Aras's direct testimony, the superior court summarized its understanding of what Aras sought regarding custody, visitation, and child support, and Aras agreed with the court's summaries. On two occasions the court offered Aras more time to testify. The court also asked substantive questions regarding: (1) the children's preferences; (2) why Katherine thought it was important for the son to live with her; (3) Katherine's income; (4) Katherine's understanding of the 2009 Christmas break events; (5) parenting styles; and (6) whether the two youngest children had any special needs.
The superior court acted well within its discretion in providing the pro se litigants assistance here. We note that had the superior court guided Aras more or inquired further of either litigant, it may have compromised its impartiality.
B. Child Support
In November 2008 the superior court issued a child support order for Aras and Katherine. Because Aras's income was over $100,000, the court used the Rule 90.3(c)(2) limit, calculating that Aras owed per month, after a health insurance adjustment: $1, 441.66 for one child; $2,025 for two children; $2,525 for three children; and $2,775 for four children.
In mid-December 2009 the youngest daughter went to Aras's home and remained there until she went to summer camp, planning to return to Texas in mid-August 2010. In April 2010 Aras sought a change in child support for this time period. He submitted a child support calculation form based on hybrid custody, asserting his monthly payment should be $2,166.50, a reduction of $608.50 monthly. Although Aras completed the hybrid support form, he calculated support based on divided custody — as if Katherine had primary custody of three children and he had primary custody of one child. In her opposition to Aras's motion, Katherine argued the court should not modify child support, but indicated her willingness to reimburse Aras for the daughter's extended visitation beyond Aras's regular court-established Christmas and summer visitation, from January 5 to June 3, 2010.
See Alaska R. Civ. P. 90.3(f)(4) (defining hybrid physical custody as when "at least one parent has primary physical custody of one or more children of the relationship, and the parents have shared physical custody of at least one child of the relationship").
See Alaska R. Civ. P. 90.3(f)(3) (defining divided physical custody as when "one parent has primary physical custody of one or more children of the relationship and the other parent has primary custody of one or more other children of the relationship, and the parents do not share physical custody of any of their children").
The superior court ordered:
[The daughter] was in [Aras's] primary care from December 17, 2009 until August 15, 2010. That equates to eight months. Per the 25 November 2008 child support order, child support for three children, with a health insurance adjustment[,] is $2,525 per month. That is a $250.00 reduction per month from the amount for four children.
[Aras's] Motion to Modify Child Support for the period of December 17, 2009 until August 15, 2010 is GRANTED. [Aras] is granted a credit of $2000.00. That credit will be applied in $500.00 per month increments starting September 1, 2010.
In other words, the superior court determined Aras's support obligation for three children ($2,525) and subtracted that amount from the total Aras previously paid for all four children ($2,775). This amounted to a $250 reduction per month over eight months, for a total of $2,000.
On appeal Aras argues the superior court erred by not applying a hybrid or divided child support formula when it calculated a reduction in Aras's child support for the period that the youngest daughter lived with him. Katherine presents no argument regarding child support.
The superior court may modify a final child support award "upon a showing of a material change of circumstances." The moving party must show by a preponderance of the evidence that a material change exists. A material change "ordinarily must be more or less permanent rather than temporary." We have held that the superior court is "to consider the nature of the changes and the reasons for the changes, and then to determine whether, under all the circumstances a modification is warranted."
Ward v. Urling, 167 P.3d 48, 52 (Alaska 2007).
Hill v. Bloom, 235 P.3d 215, 218 (Alaska 2010) (quoting Patch v. Patch, 760 P.2d 526, 529 (Alaska 1988)).
Patch, 760 P.2d at 529 (quoting Pattee v. Pattee, 744 P.2d 658, 662 (Alaska 1987)).
Although a custodial change, even absent a court order, may qualify as a material change in circumstances warranting child support modification, here there was no evidence of a material change because the youngest daughter's stay with Aras was temporary. In his motion to modify child support, Aras indicated the daughter would live with him temporarily, from mid-December 2009 until mid-August 2010, when she would return to Texas to live with Katherine. Thus the daughter's stay with Aras amounted to a five-month extension beyond the scheduled Christmas and summer visitations, although the superior court reduced Aras's child support payments for the entire eight-month period. Because the daughter's move to live with Aras was temporary, and therefore not a material change in circumstances, the superior court did not abuse its discretion by granting Aras extended visitation credits rather than modifying child support and applying a hybrid or divided child support formula.
Boone v. Boone, 960 P.2d 579, 583 (Alaska 1998) (holding children's residential changes constituted material change in circumstances).
Rule 90.3(a)(3) provides:
The court may allow the obligor parent to reduce child support payments by up to 75% for any period in which the obligor parent has extended visitation of over 27 consecutive days. The order must specify the amount of the reduction which is allowable if the extended visitation is exercised.
Because neither Aras nor Katherine contests the superior court's calculation of the extended visitation credit, we do not consider whether the ordered credit complied with Rule 90.3(a)(3) or Rule 90.3(h)(2)'s restriction on retroactive child support orders.
C. Sanctioning Katherine $1,000
The superior court held Katherine in contempt of court, sanctioning her $1,000 for Aras to deduct from his share of visitation travel costs, for her unjustified actions over the 2009 Christmas break that "undermined [Aras's] ability to have a relationship with [the oldest daughter]."
Aras argues the superior court erred by sanctioning Katherine only $1,000, asserting her personal wealth made such a sanction "completely inconsequential." Aras contends that Katherine's previous interference with his visitation combined with a best interests analysis warranted granting him primary physical custody of the two youngest children. Katherine cursorily argues the superior court erred by determining that she acted "without justification" during the Christmas break incident and by sanctioning her. Katherine contends the court erred by failing to consider Aras's "history of abusive treatment" of the oldest daughter and "the reality that [the daughter] was once again being victimized by [Aras]." Katherine alleges that Aras "verbally abus[ed] [the daughter] in his house to the point where she felt unsafe and left." Because Katherine did not cross-appeal the superior court's order sanctioning her and did not brief whether the superior court erred in doing so, we will consider her arguments only as they relate to Aras's argument that the superior court's sanction was insufficient.
See Peterson v. Ek, 93 P.3d 458, 467 (Alaska 2004) ("[F]ailure to file a cross-appeal waives the right to contest rulings below."); Brady v. State, 965 P.2d 1, 20 (Alaska 1998) ("Despite our solicitude for pro se litigants, we must conclude that [the party] has waived the claim by failing to brief it adequately.").
Alaska Statute 09.50.010(5) provides that disobedience of a lawful court order constitutes contempt. Under AS 09.50.020(a), "[a] person who commits a civil contempt is subject to damages, a civil penalty of $5,000 or less for each violation, and other orders as the court finds appropriate."
The court's sanction amount properly fell within the scope of AS 09.50.020(a). The court essentially awarded Aras $1,000 in damages to be applied towards his share of visitation travel costs. Aras's argument that the court should have considered Katherine's previous interference with visitation and conducted a best interests analysis to sanction Katherine with a change of custody fails to recognize that: (1) custody modification is not an appropriate remedy for a court order violation; and (2) the superior court considered Katherine's conduct when it reviewed Aras's custody modification motion, but the court still found that it was in the two youngest children's best interests for Katherine to retain primary physical custody. We conclude the superior court did not abuse its discretion by sanctioning Katherine $1,000 and declining to modify custody.
See Platz v. Aramburo, 17 P.3d 65, 71 (Alaska 2001) ("The interests of . . . the child[] are central to change of custody cases. This means that despite the wilful failure of a custodial parent to follow court procedures or orders, custody cannot be changed without addressing fully the question whether the change is in the child's best interests.").
V. CONCLUSION
We AFFIRM the superior court's rulings on child custody, child support, and the contempt sanction.