Kristina B. v. Edward B. , 329 P.3d 202 ( 2014 )

Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, e-mail
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
KRISTINA B., )
) Supreme Court No. S-14865
Appellant, )
) Superior Court No. 3AN-10-11620 CI
v. )
) OPINION
EDWARD B., )
) No. 6922 - July 3, 2014
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Andrew Guidi, Judge.
Appearances: Karla F. Huntington, Law Office of Karla F.
Huntington, Anchorage, for Appellant. Robin A. Taylor,
Law Office of Robin Taylor, Anchorage, for Appellee.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and
Bolger, Justices.
MAASSEN, Justice.
I. INTRODUCTION
Ed and Kristina B.1 had one son before they permanently separated. After
trial, at which the superior court heard evidence about domestic violence on Ed’s part
and Kristina’s medical and substance-abuse issues, the court granted sole legal and
primary physical custody of the child to Ed. Kristina appeals many of the court’s
1
We use initials to protect the family’s privacy.
findings of fact and legal rulings. We remand to the superior court for reconsideration
of (1) whether Kristina’s child support obligation should be reduced to reflect the
significant cost of her court-ordered urinalysis testing, and (2) whether the restrictive
visitation schedule is justified once Kristina has demonstrated a history of sobriety. On
all other issues we affirm.
II. FACTS AND PROCEEDINGS
Ed and Kristina began living together in 2006, married in 2007, and had
a son in 2008. They separated in October 2010. The superior court’s decision on
custody focused on three major issues affecting the parties’ respective abilities to parent:
Ed’s domestic violence against Kristina, Kristina’s substance abuse (involving both
alcohol and prescription narcotics), and Kristina’s physical challenges related to Crohn’s
disease and its treatment.
A. Ed’s History Of Domestic Violence
In earlier proceedings the superior court found that Ed committed domestic
violence against Kristina on several occasions and also that he verbally abused her.
Following the custody trial, the court found that these incidents constituted a history of
domestic violence for purposes of the statutory presumption against awarding custody
to a parent with such a history.2 By the time of trial Ed had completed a state-approved
36-week batterers’ intervention course and had also received individual therapy from Dr.
Keith Wiger, a counselor specially trained in domestic violence issues. Based on
testimony from Ed’s therapist that “Ed does not present a risk of harm to [his son]” and
testimony from Ed’s former fiancée that he was never physically violent or threatening
in their relationship, the court found that Ed’s violence with Kristina was “unlikely to
recur.”
2
See AS 25.24.150(g).
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B. Kristina’s Substance Abuse
Kristina’s history of substance abuse dated back to her childhood; she
began abusing alcohol at age 11. Witnesses at the custody trial described her continued
abuse of substances to the point of incapacitation. Along with alcohol and prescription
narcotics, Kristina used marijuana, cocaine, and Valium. Underlying her drug usage and
physical health issues were mental health issues including “depression, anxiety, a suicide
attempt (2007), and PTSD.”
Kristina admitted that she suffers from alcoholism. She has participated
in a number of substance abuse programs but relapsed each time. Her inability to quit
drinking contributed to the loss of her teaching career, the custody of her first son, and
two marriages, and it exacerbated her Crohn’s disease, a serious gastrointestinal disorder
that may be very painful. She had three drunk-driving convictions (1991, 2004, and
2007) and a negligent-driving conviction following a 2009 DUI arrest.3
Kristina also had a history of abusing the narcotic medications prescribed
to treat her Crohn’s disease. The court-appointed custody investigator reported that
Kristina had “multiple medical providers treating the pain associated with Crohn’s
Disease, and other medical health problems, and overused or misused medications from
these various providers.” Kristina denied misuse, but the superior court found that a tape
recording “clearly captured the sounds she made while chopping up her pills and
snorting them.”
Given Kristina’s “alcohol, medications, unresolved Crohn’s pain and the
mental health history,” the custody investigator recommended that she go to the Mayo
Clinic for assessment and treatment. Kristina did so for about six weeks in the summer
3
Kristina testified that this incident resulted in a reduction of her visitation
rights with an older son, from three Saturdays and one overnight per month to telephone
contact only.
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of 2011, but the custody investigator was unable to retrieve all the records of that visit
for her report. The investigator did receive partial records from the clinic diagnosing
Kristina with “complex medical [issues], addiction, and a chronic pain syndrome” and
recommending a “pain rehabilitation center and after that[] a chemical dependency
treatment program.” The Mayo Clinic apparently treated Kristina’s narcotic
dependencies and chronic pain syndrome, but she never completed the recommended
dependency program, though she did receive outpatient therapy at Providence Behavioral
Health upon her return to Alaska.
The custody investigator also recommended that Kristina be ordered to
undergo urinalysis testing for alcohol every 72 hours, and the court adopted that
recommendation. Upon her return from the Mayo Clinic, however, Kristina did not
resume testing for four to six weeks, and she then had six gaps between tests, leaving
open the possibility that she was drinking. Uninterrupted testing resumed in late
December 2011, but with positive readings on December 30, 2011, and January 3, 2012.4
Kristina appeared to be recovering at the time of trial. In addition to her
therapy at Providence Behavioral Health, she was attending meetings of Alcoholics
Anonymous. She was working full-time in a professional office setting, had her own
residence, and was developing a new social network.
Still, the court had serious questions about Kristina’s credibility in light of
her demeanor and the inconsistencies between her testimony and that of other witnesses.
In particular, the court found her untruthful with regard to the critical issue of her
sobriety.
4
Kristina argued that these two results were false positives, and her expert
witness testified that the readings could have been caused by a yeast infection. The court
rejected this explanation.
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C. Kristina’s Crohn’s Disease
Kristina was diagnosed with Crohn’s disease before her marriage. She had
surgeries to treat symptoms of the disease in February and October 2009 and again in
February 2011. She was prescribed narcotics after each surgery, and there was evidence
she abused these drugs. But it was also undisputed that the pain medications, even if
used only as prescribed, could cause her to experience debilitating side effects.
In its custody decision, the superior court highlighted an incident in April
2011. One night Kristina suffered a bout of incontinence in the room where she slept
with her son. She was unable to clean up but returned to bed, leaving feces on the floor
and her pain medication patches out by the bed. A family friend and a hired custody
supervisor were sleeping in adjacent rooms, but Kristina did not alert them or ask for
help. In the morning it took them over an hour to rouse her.
On another occasion, the superior court found, Kristina accidentally set a
fire in the garage. The court found this may have been due to her failure to use her pain
medications responsibly, with due regard for the safety of others.
At trial Kristina reported that she was managing her Crohn’s disease with
non-narcotic medication after her treatment at the Mayo Clinic; the custody investigator
testified that pharmacy records supported this assertion.
D. Procedural History
This litigation began with domestic violence petitions and interim custody
hearings following the couple’s separation in October 2010. In January 2011 the court
adopted the custody investigator’s interim recommendations and limited both parties to
supervised custody, giving Kristina four days a week and Ed three. The court also
ordered Ed to attend a 36-week domestic violence intervention program for batterers and
ordered Kristina to submit to weekly urinalysis. The court ordered psychological
examinations of both parties as well, to help determine whether there were underlying
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issues that contributed to their behavior, but due to financial constraints neither party
complied.
Both parties adjusted their living arrangements to meet the court’s interim
order for supervised visitation. Ed remained in the family home and his parents moved
in to serve as his supervisors. Kristina moved in with a family friend and hired a
personal care attendant to act as her supervisor.
When Ed learned of Kristina’s incident of incontinence and insensibility
described above — and that as a result of it Kristina had been asked to leave the home
of the family friend — he filed an emergency ex parte domestic violence petition and was
granted interim legal and physical custody of their son. The court’s order was based on
the testimony of Kristina’s personal care attendant that Kristina, because of her “serious
substance abuse problem, is unable to care for the child.” Kristina’s visitation was
reduced to one hour of supervised visitation and one hour of telephone or Skype visits
per week.
Ed went on to complete the batterers’ intervention program, as well as
psychological counseling for domestic violence. The court consequently lifted the
requirement of the interim custody order that his time with his son be supervised, and his
parents moved out. At the time of the custody trial five months later, the child appeared
to be doing well in Ed’s care.
In its written order following trial, the superior court considered the
statutory best interest factors, decided that Ed had overcome the statutory presumption
against awarding custody to a parent with a history of domestic violence, and awarded
Ed sole legal and primary physical custody of the child. The court also approved Ed’s
planned move to Texas, finding that there were “legitimate reasons for the move, both
economic and familial,” and that it was not intended to interfere with Kristina’s
parenting.
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Kristina filed this appeal, challenging: (1) the superior court’s finding that
Ed had overcome the statutory presumption of AS 25.24.150(g) against awarding him
custody; (2) the weight the court gave to Ed’s domestic violence in assessing the best
interest factors of AS 25.24.150(c); (3) the court’s failure to apply AS 25.24.150(k) to
hold that the conditions that made Kristina an unfit parent were attributable to Ed’s
domestic violence and therefore could not form the basis of the court’s custody decision;
(4) the court’s finding that Kristina committed an act of domestic violence when she
accidentally started the fire in the garage; (5) the court’s failure to account for the costs
of Kristina’s medication and her court-ordered urinalysis testing in its calculation of her
child support obligation; (6) the court’s failure to allocate a part of the visitation costs to
Ed; (7) the restricted visitation schedule that follows Kristina’s year of demonstrated
sobriety; and (8) the court’s approval of Ed’s planned move to Texas.
III. STANDARDS OF REVIEW
“Trial courts have broad discretion in determining child custody.”5 We will
set aside factual findings only if they are clearly erroneous.6 Factual findings are clearly
erroneous when, based on the entire record, 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.”7 We afford particular deference to factual findings based primarily
5
Ebertz v. Ebertz, 113 P.3d 643, 646 (Alaska 2005) (citing Smith v. Weekley,
73 P.3d 1219, 1222 (Alaska 2003)).
6
Id.
7
Id. (quoting Jenkins v. Handel, 10 P.3d 586, 588 (Alaska 2000)) (internal
quotation marks omitted).
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on oral testimony, because the trial court is better suited to judge the credibility of
witnesses and weigh conflicting evidence.8
We will find that a trial court abused its discretion in a custody case if it
“consider[s] improper factors in making its custody determination, fails to consider
statutorily mandated factors, or assign[s] disproportionate weight to particular factors
while ignoring others.”9
IV. DISCUSSION
A. The Trial Court Did Not Err In Determining That Ed Overcame The
Domestic Violence Presumption Of AS 25.24.150(g).
1. The presumption was in effect.
Alaska Statute 25.24.150(g) creates a rebuttable presumption that a parent
with a history of domestic violence may not be awarded legal or physical custody.10 The
statutory term “history of domestic violence” is defined in the next subsection, .150(h),
to mean either that (1) “during one incident of domestic violence, the parent caused
serious physical injury,” or (2) “the parent has engaged in more than one incident of
domestic violence.”
The parties agree that the presumption was in effect against Ed. In the
superior court’s first interim order — in which it held that both parents needed
supervised visitation — the court found that Ed had once dragged Kristina outdoors by
8
Limeres v. Limeres, 320 P.3d 291, 296 (Alaska 2014) (citations omitted);
Nancy M. v. John M., 308 P.3d 1130, 1133 (Alaska 2013) (citing Misyura v. Misyura,
242 P.3d 1037, 1039 (Alaska 2010)).
9
Ebertz, 113 P.3d at 646 (quoting Barrett v. Alguire, 35 P.3d 1, 5 n.5
(Alaska 2001)) (alterations in original) (internal quotation marks omitted).
10
“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.” AS 25.24.150(g).
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the hair in sub-zero temperatures, had beaten her with a belt and shut her up in a small
room, and in a separate incident had slapped her face. Under the statute, these incidents
unquestionably constitute a history of domestic violence.
2. The superior court did not clearly err in finding that Ed had
successfully completed a batterers’ program and that he did not
engage in substance abuse.
Overcoming the rebuttable presumption of AS 25.24.150(g) is addressed
in subsection (h):
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.
The evidence supports the superior court’s conclusion that Ed rebutted the presumption.
First, Ed completed a 36-week family violence intervention program at
Alaska Family Services. While that alone was sufficient to satisfy the statutory
requirement that he complete “an intervention program for batterers,” the evidence
showed that he also completed a four-hour parent education class at Alaska Family
Services and received one-on-one counseling from a psychologist with expertise in
domestic violence issues.11
11
See Stephanie F. v. George C., 270 P.3d 737, 753-54 (Alaska 2012)
(finding that 12 weeks of one-on-one therapy might be adequate to overcome the
presumption even where the parent failed to complete a formal batterers’ program,
especially in light of evidence that the parent’s acts of domestic violence were
“situational” and “unlikely to reoccur”).
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Kristina argues, however, that Ed did not meet his burden of proving that
he successfully completed the program. She argues that his certificate of completion
proves only that he attended the classes, not that he absorbed what he was taught. She
also asserts that the legislature must have intended there be proof in each individual case
that the program succeeded before the presumption against an award of custody can be
overcome.
But Kristina never questioned the program’s effectiveness during trial, and
we will not weigh evidence in the first instance.12 In any event, her arguments — based
primarily on Ed’s credibility — are not persuasive. As the superior court found, there
was other evidence besides the certificate and Ed’s testimony to support the conclusion
that his completion of the program was successful. His therapist Dr. Wiger, who was
qualified as an expert in domestic violence issues, testified about Ed’s internalization of
the program’s lessons. The custody investigator, too, independently determined that Ed
had successfully completed the program, based both on Dr. Wiger’s records and her own
knowledge of the program’s curriculum. Both Dr. Wiger and Ed’s former fiancée
testified that Ed’s violence toward Kristina was not reflected in other aspects of his life
and was therefore unlikely to be repeated. The superior court found Ed credible on this
issue, and it was in a better position than we are to weigh the evidence and assess the
credibility of witnesses.13
12
Sagers v. Sackinger, 318 P.3d 860, 866 (Alaska 2014); Ebertz v. Ebertz,
113 P.3d 643, 646 (Alaska 2005). Here, the superior court observed that “no successful
challenge was made to the evidence that Ed studiously attended and completed the
program.”
13
See, e.g., Stephanie F., 270 P.3d at 749 (“[T]he trial court was in a better
position to assess the credibility of the witnesses, the overall persuasive force of the
evidence, and the persuasiveness of the expert testimony.”).
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Overcoming the presumption also requires a finding that the “perpetrating
parent . . . does not engage in substance abuse.”14 The superior court found that Ed did
not have a substance-abuse problem, and Kristina does not challenge this finding on
appeal.
3. The superior court did not clearly err in finding that the child’s
best interests require Ed’s participation as a custodial parent.
In addition to the successful completion of a batterers’ intervention program
and the absence of any substance-abuse problem, a parent seeking to overcome the
presumption of AS 25.24.150(g) must show that it is in the child’s best interests that the
parent have custody: the statute’s listed justifications are that “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.”15 On this issue the superior court found:
Kristina is a chronic, long-term alcoholic and prescription
drug abuser who has been sober only about three months (as
of the date of trial). . . . She has had four to five previous
unsuccessful attempts at substance abuse treatment and
recovery. Based on the severity and length of her addiction,
as well as the very concerning evidence that she has not been
truthful about her sobriety, the court must find that Kristina
meets the statutory definition of a parent who “engages in
substance abuse that affects her parenting abilities.”
Kristina argues that this finding was clearly erroneous; she contends that
she was sober longer than the three months the superior court credited to her. She
specifically disputes the accuracy of two positive urinalysis results in the months leading
up to trial. She correctly points out that the superior court erred when it attributed to her
14
AS 25.24.150(h).
15
Id.
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expert witness the theory that “possible use of hand sanitizer wipes may account for the
above-normal biomarker readings,” a theory the superior court rejected.16 But the court’s
erroneous attribution of this theory to Kristina’s expert does not affect its ultimate
conclusion — that there was no credible, innocent explanation for the positive urinalysis
results. Taking into account the positive readings, the court found that Kristina’s period
of sobriety had commenced no earlier than February 2012, only a few months before
trial. On that ground, and considering “the severity and length of her addiction” and “the
very concerning evidence that she has not been truthful about her sobriety,” the court
found that Kristina was “engaging” in substance abuse for purposes of section .150(h).
This finding was not clearly erroneous.
The superior court also found that even if Kristina’s recent sobriety
precluded a finding that she was currently “engage[d] in substance abuse,” her history
of drug addiction and alcoholism nonetheless constituted “other circumstances” affecting
the best interests of her son for purposes of subsection .150(h), thus still “requir[ing]
Ed’s participation as a custodial parent for [their son].” This finding also has substantial
support in the record.
Finally, Kristina argues that her substance abuse history is not so disabling
as to “require” Ed’s participation as a custodial parent. But the superior court is in a
better position to make that judgment, since it observed the parties and witnesses over
the course of the litigation and can better assess the circumstances.17 Given the
seriousness of Kristina’s past substance abuse and her uncertain future, there was
16
Although Kristina’s expert, Dr. Alfred Staubus, made reference to tests
showing that health care workers who use a lot of hand sanitizer may absorb enough
alcohol through the skin to generate biomarkers, he did not rely on that theory to explain
Kristina’s positive results; rather, he cited the metabolic effects of a fungal infection.
17
Stephanie F., 270 P.3d at 749.
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substantial support for the superior court’s finding that Ed’s participation as a custodial
parent is necessary to the child’s best interests. The superior court is entitled to
substantial deference when it determines that the statutory presumption has been
overcome,18 and its finding that it was overcome in this case is not clearly erroneous.
B. The Superior Court Adequately Weighed Ed’s History Of Domestic
Violence In Considering The Child’s Best Interests.
Separately from the presumption addressed in AS 25.24.150(g) and (h),
AS 25.24.150(c) requires that a superior court base its custody decision on the best
interests of the child and lists the factors the court should consider in making a best
interests determination. “Though a trial court cannot assign disproportionate weight to
particular factors while ignoring others, it has considerable discretion in determining the
importance of each statutory factor in the context of a specific case and is not required
to weigh the factors equally.”19
Kristina challenges the court’s analysis of the seventh factor — “any
evidence of domestic violence, child abuse, or child neglect in the proposed custodial
household or a history of violence between the parents”20 — arguing that the court gave
too little weight to Ed’s history of domestic violence. The court addressed Ed’s domestic
violence in the context of the statutory presumption of subsection .150(g), discussed
above; the court made credibility findings and assessed how the domestic violence could
affect the child’s needs. The court clearly considered the issue seriously. Kristina’s
argument that the court gave the factor too little weight is really an argument that the
18
Id.
19
Williams v. Barbee, 243 P.3d 995, 1005 (Alaska 2010) (quoting Barlow v.
Thompson, 221 P.3d 998, 1005 (Alaska 2009)) (alterations and internal quotation marks
omitted).
20
AS 25.24.150(c)(7).
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court clearly erred in finding (1) that Ed was credible whereas Kristina was not; (2) that
the violence was “unlikely to recur”; and (3) that it was in the child’s best interests that
Ed participate as a custodial parent.
But these factual findings are not clearly erroneous. As we recently
observed in a similar case:
[T]he trial court was in a better position to assess the
credibility of the witnesses, the overall persuasive force of the
evidence, and the persuasiveness of the expert testimony. . . .
[The] difficult and important assessment of [gauging the risk
of future violence] is one best made by the trial court.[21]
The same is true here. Witnesses at trial included Kristina’s ex-husband, five long-time
friends and family members, her personal care attendant, her AA sponsor, her employer,
and four new friends from AA. Supporting Ed’s rehabilitation was testimony from his
ex-fiancée, his therapist, and several experts. The superior court explained in detail the
reasons for its credibility findings, and its findings support its ultimate decision. The
court did not abuse its discretion when it weighed the domestic violence factor in the best
interests analysis.
C. The Superior Court Did Not Err By Failing To Apply AS 25.24.150(k).
Kristina argues that once the superior court concluded that her substance
abuse rendered her incapable of parenting, it was required to address AS 25.24.150(k),
which states that “[t]he fact that an abused parent suffers from the effects of the abuse
does not constitute a basis for denying custody to the abused parent unless the court finds
that the effects of the domestic violence are so severe that they render the parent unable
to safely parent the child.” Kristina argues that her substance abuse and post-traumatic
stress disorder (PTSD) are effects of Ed’s domestic violence, and the superior court erred
by relying on these conditions to deny her custody of the child.
21
Stephanie F., 270 P.3d at 749.
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The superior court did not err. First, Kristina failed to demonstrate that her
substance abuse was the result of Ed’s domestic violence. To the contrary, the evidence
showed that her history of abuse had begun over 25 years earlier, long before she met Ed
in 2006.
Kristina makes the same argument with regard to her PTSD, relying on the
expert testimony of a substance abuse counselor who diagnosed her with PTSD caused
by domestic violence, with Ed as the perpetrator. But the superior court did not cite
Kristina’s PTSD as “a basis for denying custody” to her; its primary concerns with her
parenting involved her substance abuse and the physical challenges posed by her Crohn’s
disease.22 In the superior court’s view, these were the factors that caused her to neglect
and recklessly endanger the child, making her an unsafe parent. Since the superior court
did not base its custody award on Kristina’s PTSD, AS 25.24.150(k) is irrelevant to that
issue.
D. The Superior Court Did Not Err In Determining That Kristina
Committed An Act Of Domestic Violence.
The superior court found that Kristina had committed an act of domestic
violence when she accidentally set a pillow on fire in the garage of the friend’s house
where she was staying after her separation from Ed; it declined, however, to find that
Kristina had a history of domestic violence for purposes of the statutory presumption
against custody.23 Kristina disputes that she caused the fire and that the facts as alleged
could constitute domestic violence.
22
The superior court cited Kristina’s “PTSD-like symptoms” when discussing
each parent’s willingness to foster the child’s relationship with the other parent, a factor
it found to favor neither parent. The court also referenced Kristina’s PTSD as one of the
“risk factors for relapse” when it set out the conditions for her move from supervised to
unsupervised visitation.
23
See AS 25.24.150(g).
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The superior court’s findings of fact were based on the testimony of
Kristina’s personal care attendant.24 The attendant testified that Kristina had been in the
garage about 30 minutes before the fire was discovered; that Kristina “had fallen asleep
before, smoking a cigarette in the garage, quite a few times”; and that no one else was
home when the fire started except herself and the child. Based on this testimony and
Kristina’s failure to refute it, the court found that Kristina had started the fire. In light
of the evidence, Kristina’s bare argument that “other people could have caused the
situation” is not sufficient to show that the court clearly erred.
The superior court considered whether these facts constituted reckless
endangerment, a crime that is committed when one “recklessly engages in conduct which
creates a substantial risk of serious physical injury to another person.”25 The court found
that Kristina was “frequently dazed” during this period of her life, possibly due to her
pain medications; that even if using the medications properly “she still was responsible
for taking her medication in a safe manner, which includes a duty to avoid engaging in
activities that would be hazardous if performed while impaired”; and that “leaving a lit
cigarette in contact with flammable material” was one such hazardous activity. The court
therefore found she had acted recklessly and had endangered her son’s safety. Because
recklessly endangering a family member constitutes an act of domestic violence,26 the
court found that Kristina had committed an act of domestic violence against her son.
Kristina argues that there was no evidence she was under the influence of
narcotics when the fire started. But the court found only that “the most likely cause of
Kristina’s frequently dazed condition during this time period was her abuse of
24
The attendant was hired to supervise Kristina’s visits with her son.
25
AS 11.41.250.
26
Will. v. State, 151 P.3d 460, 467 (Alaska App. 2006) (citing AS
18.66.990(3); AS 11.41.520).
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prescription narcotics.” And while the court noted that “leaving a lit cigarette in contact
with flammable material” is a hazardous activity “if performed while impaired,” the
activity is equally hazardous — and equally reckless — if the actor is not impaired.
Kristina also argues that in finding her conduct reckless, the superior court
ignored the fact that she had hired the personal care attendant to act as a supervisor and
thus had a “back-up plan to keep [the child] safe that day.” But the fact that the superior
court had correctly anticipated Kristina’s recklessness when ordering supervised
visitation does not make the conduct less reckless. Indeed, the presence of the attendant
meant that there were two people exposed to the risk of harm, not just one. On these
facts, we hold that the court did not abuse its discretion in deciding that Kristina had
committed an act of domestic violence.27
Finally, we reject Kristina’s argument that the finding of domestic violence
violated her due process rights. Kristina argues that she had no opportunity to refute the
testimony of the personal care attendant by cross-examining her on the issue or
presenting her own contrary evidence, because she did not anticipate that the testimony
would be used to support a finding that she committed an act of domestic violence. But
this argument is not supported by the record. Kristina had the opportunity to cross-
examine the attendant about the fire incident, which was clearly relevant to her parenting
capabilities, but she chose to focus on other issues. She did not ask for more time to
prepare to meet the evidence, nor does she explain what benefit she would have gained
from more time or more notice. Once the evidence of domestic violence came in, the
27
Ebertz v. Ebertz, 113 P.3d 643, 646 (Alaska 2005) (observing that in the
custody context, factual findings are reviewed for clear error and the application of facts
to law is reviewed for abuse of discretion).
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superior court was obliged to consider it.28 Since the facts in this case support the court’s
finding, we see no error.
E. On Remand The Superior Court Should Account For The Cost Of
Court-Ordered Urinalysis Testing In Kristina’s Child Support
Obligation.
Kristina challenges the superior court’s award of child support, which
requires that she pay $537.58 per month pursuant to the formula of Alaska Civil
Rule 90.3. “The superior court presumptively does not abuse its discretion when it
awards child support based on Civil Rule 90.3.”29 Kristina argues that the superior court
should have deviated from Rule 90.3 in her case, reducing her monthly child support
obligation because of her medication costs and the cost of court-ordered urinalysis.
A trial court may deviate from the Rule 90.3 formula if the party seeking
the deviation proves by clear and convincing evidence that manifest injustice will result
if the support award is not varied.30 Such a showing is considered “good cause” for
variance.31 In order to show good cause, therefore, Kristina had the burden to show that
her “health or other extraordinary expenses” made the Rule 90.3 formula unjust.32
Kristina asserts that she has a net income of about $2,600 per month, that
her monthly out-of-pocket cost for Crohn’s disease medication is $1,800, and that her
28
AS 25.24.150(c)(7) (“In determining the best interests of the child the court
shall consider . . . any evidence of domestic violence . . . in the proposed custodial
household . . .”).
29
Coghill v. Coghill, 836 P.2d 921, 924 (Alaska 1992) (citing Alaska R. Civ.
P. 90.3, Commentary VI (“[T]he rule presumes that support calculated under 90.3(a) or
(b) does not result in manifest injustice.”)).
30
Alaska R. Civ. P. 90.3(c)(1).
31
Id.
32
See Alaska R. Civ. P. 90.3, Commentary VI (B).
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court-ordered urinalysis testing costs about $1,440. She points out that these costs
together surpass her income and contends that she is left with nothing for living expenses
or gas money for visits with her son. She claims that this burden is unjust.
There is support in the record for the court’s failure to vary the Rule 90.3
formula because of the cost of Kristina’s medication. She submitted none of her medical
bills as evidence; Ed attested by affidavit that most of the cost of her medication had
been covered by insurance during their marriage; and Kristina confirmed that she had
health insurance available through her employer. We conclude that the superior court
did not clearly err when it rejected a variance based on the cost of Kristina’s medication.
But the court-ordered urinalysis testing is another matter. Kristina testified
that the testing, which she was required to undergo every 72 hours, costs $144 each time,
for a total monthly cost of approximately $1,440. There appears to be no other evidence
in the record about the cost, and Ed’s only argument against a variance based on the cost
is that the testing requirement is only temporary.33 But the cost is significant, it is court-
ordered, it is unlikely to be covered by insurance, and it may well impact Kristina’s
ability to visit her son. The superior court should revisit this issue on remand and make
a specific finding as to whether the cost of the mandatory urinalysis testing justifies a
deviation from the Rule 90.3 calculation.
F. The Court Did Not Err When It Refused To Order Ed To Bear Some
Of The Visitation Costs.
Kristina also argues that the court should have required Ed to share the
transportation costs for her visits with her son. Rule 90.3(g) requires the trial court to
33
As Ed acknowledges, whether a cost is permanent or temporary is a
relevant consideration when a parent seeks to modify child support based on a “material
change in circumstances,” see Patch v. Patch, 760 P.2d 526, 530 (Alaska 1988) (“[A]
trial court should be reluctant to modify child support obligations when the obligor’s loss
of income appears only temporary.”); and this case presents an initial calculation of child
support, not a modification.
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“allocate reasonable travel expenses which are necessary to exercise visitation between
the parties as may be just and proper for them to contribute.” We review the court’s
allocation of visitation expenses for an abuse of discretion.34
The superior court did not explain its failure to split the costs, but the
limited evidence on the issue showed that Kristina drove from Anchorage to Wasilla to
pick up the child for her bimonthly visits with him and that she missed a number of visits
without prior notice, causing Ed to incur the cost and inconvenience of driving the child
to the pickup point at a supermarket in Wasilla. There was evidence that Kristina
exaggerated the cost of her travel and that the true monthly cost of the visits was less
than $40. We cannot find on this record that the superior court abused its discretion on
this issue.35
G. On Remand The Superior Court Should Reconsider The Limits On
Kristina’s Visitation Following A Year Of Sobriety.
The superior court ordered that Kristina’s visitation will increase as she
demonstrates that she is successfully addressing her problems with substance abuse.
According to the order, “[a]fter Kristina has had six months of documented and
uninterrupted total sobriety, and providing she has continued in her current treatment to
address her management of Crohn’s pain and her PTSD, which are both risk factors for
relapse, the visitation schedule shall change.” Kristina is then allowed mostly
unsupervised visits, and she can transition into entirely unsupervised alternate weekend
34
C.R.B. v. C.C., 959 P.2d 375, 384 (Alaska 1998), overruled on other
grounds by Evans v. McTaggart, 88 P.3d 1078, 1085 (Alaska 2004).
35
Kristina cursorily challenges the superior court’s failure to “address the
question of how to divide airfare to Texas, if/when Ed actually moves.” But as Ed
responded to this argument in the trial court, the move was then “extremely speculative,”
and the issue of shared costs is better addressed in the context of the parties’ current
finances if and when the move occurs.
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visits “after one full year of total, uninterrupted and documented sobriety and compliance
with her therapy programs.” This arrangement will constitute “[t]he final transition.”
Kristina argues that this unequal visitation schedule, limiting her to alternate weekends
even after she has demonstrated long-term sobriety, is against public policy and should
be reversed.
The superior court essentially adopted the custody arrangement
recommended by the custody investigator. Notably, the investigator predicted that “if
Kristina is 100% sober and is not incapacitated due to a flare-up in her Crohn’s Disease
or treatment . . . she is likely able to meet [her son’s] basic needs.” The court found that
Kristina was “not capable at this time of meeting [the child’s] needs because of her
history of substance abuse.” (Emphasis added.) The court did not find that Kristina
would never be capable of meeting her child’s basic needs; we are therefore troubled by
the prospect that the “final transition” to fully unsupervised visitation, after a year of
proven sobriety, still leaves Kristina with visits of only every other weekend.36 Custody
orders involving equally capable parents typically allow for extended summer visits and
shared holidays.37 We do not mean to imply that an unequal schedule of custody and
visitation may not be warranted in this case; but the court’s order does not explain why
such a schedule will still be justified once Kristina’s primary parenting issue — her
substance abuse — has been resolved. We remand for the superior court’s further
consideration of the issue. The court may revise the visitation schedule that is to follow
36
The superior court did, on reconsideration, allow Kristina to have a half­
day’s visitation on Thanksgiving Day.
37
See, e.g., McLane v. Paul, 189 P.3d 1039, 1040, 1042 (Alaska 2008);
Morino v. Swayman, 970 P.2d 426, 427 (Alaska 1999); see also AS 25.20.060 (“An
award of shared custody shall assure that the child has frequent and continuing contact
with each parent to the maximum extent possible.”); Elliott v. Settje, 27 P.3d 317, 323-24
(Alaska 2001) (discussing shared custody between equally capable parents).
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Kristina’s “final transition” to fully unsupervised visitation; it may give a fuller
explanation of why Kristina’s visitation should remain unusually restricted; or it may
hold the issue in abeyance until the precondition of demonstrated sobriety has been met,
and then set the visitation schedule that is most appropriate under the circumstances.
H. The Court Did Not Clearly Err In Finding That Ed’s Move To Texas
Was Permissibly Motivated.
At the time of trial Ed was contemplating a move to Texas to be closer to
his parents. The superior court approved of this plan, finding that Ed had “legitimate
reasons for the move, both economic and familial.” Kristina challenges this finding,
arguing that Ed’s behavior shows that he is motivated by an intent to hurt Kristina and
“damage the mother-son relationship.”38
Based on Ed’s testimony the court expressly found that his move to Texas
was prompted by legitimate reasons — primarily his desire to live closer to his parents,
who had bonded with their grandson when they came to Alaska to supervise Ed’s
custody. The court found “no evidence to indicate [Ed’s] motivation is to thwart
Kristina’s contact with [the child],” and on appeal Kristina points only to evidence that
Ed had hurt her in the past, not any evidence specifically related to his reasons for
moving. The superior court’s finding of motivation depends almost entirely on its
38
A parent’s “proposed move is legitimate if it was not primarily motivated
by a desire to make visitation . . . more difficult.” Moeller-Prokosch v. Prokosch, 27
P.3d 314, 316 (Alaska 2002) (quoting House v. House, 779 P.2d 1204, 1208 (Alaska
1989)) (internal quotation marks omitted). If not improperly motivated, a parent’s move
out of state will not require a modification of custody as long as the move is in the best
interests of the child. Id. at 316-17.
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assessment of Ed’s credibility, and we therefore give it particular deference.39 Kristina
has not persuaded us that the finding is clearly erroneous.
V. CONCLUSION
We REMAND to the superior court for reconsideration of two issues, as
explained above: (1) whether the costs of court-ordered urinalysis testing should reduce
Kristina’s child support obligation, and (2) whether a more liberal visitation schedule
should follow Kristina’s period of demonstrated sobriety. On all other issues, we
AFFIRM the decision of the superior court. We retain jurisdiction.
39
Limeres v. Limeres, 320 P.3d 291, 296 (Alaska 2014) (“The trial court’s
factual findings enjoy particular deference when they are based ‘primarily on oral
testimony, because the trial court, not this court, judges the credibility of witnesses and
weighs conflicting evidence.’ ” (quoting Sheffield v. Sheffield, 265 P.3d 332, 335 (Alaska
2011))).
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