Opinion
Supreme Court No. S-11317.
May 25, 2005.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, William F. Morse, Judge. Superior Court No. 3AN-02-5192 CI.
Grant Matthisen, pro se, Anchorage.
Before: Bryner, Chief Justice, Matthews, Eastaugh, Fabe, and Carpeneti, Justices.
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
I. INTRODUCTION
Grant and JoAnna Matthisen were divorced in late 2003. After a custody investigation and a two-day trial, JoAnna was awarded primary custody of their two children. Grant appeals the custody order, challenging the sufficiency of the superior court's findings, and its determination that it is in the children's best interests that JoAnna have custody. He also appeals the divorce decree, arguing that the court lacked jurisdiction, that he did not consent to the divorce, and that his constitutional rights were violated. Because the superior court's decision properly applied the statutory requirements for determining the children's best interests, the superior court's exercise of jurisdiction was proper, Grant's consent was not necessary for the court to enter a divorce, and his constitutional rights were not violated, we affirm.
II. FACTS AND PROCEEDINGS
Grant and JoAnna Matthisen were married in 1991. For many years, the Matthisens resided in Wasilla, where they had a happy and traditional marriage. They had two children, Ashleigh M. Matthisen (4/4/95) and Austin D. Matthisen (9/3/98). Grant Matthisen was a chiropractor who owned a successful practice. JoAnna Matthisen was a stay-at-home mom who bred show dogs as a hobby.
In 1999 Grant was involved in a car accident. He suffered serious permanent nerve and muscular-skeletal damage. As a result of the accident, Grant had long-term, serious pain, for which he takes prescription pain killers, muscle relaxants, and sleep aids. Since the accident he has been physically incapable of working full time as a chiropractor. He had to sell his chiropractic practice. The family gradually sank into debt. The injuries took a toll on Grant's ability to participate in the life of his family. He was unable to help JoAnna around the house, to lift their two-year-old child, and to engage in much physical activity at all. The financial and emotional stress that resulted from the accident led to the breakdown of the couple's marriage.
In the fall of 2001, the family moved to Washington state, where, in spite of his injuries, Grant began working part time as a chiropractor and giving speeches. In December 2001 Grant returned to Anchorage. JoAnna and the children remained in Washington. The parties dispute the reasons for Grant's return to Anchorage. According to Grant, he and JoAnna decided that the entire family would return to Anchorage; he would go first, and JoAnna would drive the family's motor home back to Anchorage with the children in the spring, when the roads would be safer. But according to JoAnna, Grant quit his job unexpectedly and returned to Alaska knowing full-well that JoAnna would not accompany him.
Shortly after Grant returned to Alaska, JoAnna filed for divorce. Although she and the children have continued to live in Washington, she filed her complaint for divorce and custody in Anchorage. Grant filed a counterclaim, also seeking a divorce and custody. The court awarded interim custody to JoAnna, ordered a child custody investigation, and directed Grant to pay interim child support of fifty dollars per month.
JoAnna and the children lived for a time with family friends who bred show dogs. JoAnna began handling dogs at shows for money and grooming dogs at a friend's shop.
Over the next year, as the parties prepared for trial, they made various allegations about each other. JoAnna alleged that Grant was abusing his pain medications, that he had a serious problem with alcohol, and that he was mixing alcohol with his pain medications. She expressed concern that medication would impede his parenting abilities. She also repeatedly complained that Grant rarely met his child-support obligation and that he failed to submit necessary financial information.
For his part, Grant claimed that JoAnna had been stealing his prescription pain medications in large quantities. He objected to the conditions in which JoAnna and the children were living, claiming that they were filthy, that there were dog feces everywhere, that his children were living in a dog run, and that they were catching bizarre bacterial infections from the dogs. He also claimed that JoAnna's witnesses were perjuring themselves and committing fraud.
He alleged that she stole and consumed eleven hundred pills over the course of two years.
In February 2003 Superior Court Judge William F. Morse held a two-day custody trial. Both parties testified and presented witnesses. Judge Morse issued oral and written findings awarding sole legal and primary physical custody to JoAnna. He awarded Grant summer visitation and visitation for some holidays. After holding a hearing in the fall of 2003, Judge Morse issued a divorce decree and divided the couple's property.
Grant appeals the custody determination and the divorce decree. JoAnna did not file an opposing brief.
III. DISCUSSION
A. Custody Decision
Grant initially argues that "the trial court err[ed] in its findings with regard to the matters of child custody and visitation, by failing to adequately consider the statutorily prescribed factors while considering impermissible factors." Trial courts have broad discretion to decide custody matters. We will not reverse a trial court's custody determination unless the court's factual findings are clearly erroneous or the court abused its discretion when weighing the statutorily prescribed factors. We set aside findings of fact as clearly erroneous only if a review of the entire record firmly convinces us that the trial court made a mistake. When reviewing findings of fact, we accord great deference to the trial court's evaluation of the credibility of witnesses "since the court heard and observed the witnesses first hand."
Evans v. Evans, 869 P.2d 478, 479-80 (Alaska 1994).
Hamilton v. Hamilton, 42 P.3d 1107, 1111 (Alaska 2002).
Dodson v. Dodson, 955 P.2d 902, 907 (Alaska 1998) (citing Demoski v. New, 737 P.2d 780, 784 (Alaska 1987)).
When deciding which parent should have custody over a child, the trial court "must base custody determinations upon the child's best interests, using the factors listed in AS 25.24.150(c)." The court is not limited to considering only the statutory best-interest factors but may consider other factors if they are "relevant to the child's best interests." Although the court should consider all the factors, it need only discuss those it deems relevant, as long as the totality of the findings "give us a clear indication of the factors which the superior court considered important . . . or allow us to glean from the record what considerations were involved." We will find an abuse of discretion only where "the trial court considered improper factors in making its custody determination, failed to consider statutorily mandated factors, or assigned disproportionate weight to particular factors while ignoring others."
Schmitz v. Schmitz, 88 P.3d 1116, 1122 (Alaska 2004). AS 25.24.150(c) provides that:
In determining the best interests of the child the court shall consider
(1) the physical, emotional, mental, religious, and social needs of the child;
(2) the capability and desire of each parent to meet these needs;
(3) the child's preference if the child is of sufficient age and capacity to form a preference;
(4) the love and affection existing between the child and each parent;
(5) the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;
(6) the 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;
(7) any evidence of domestic violence, child abuse, or child neglect in the proposed custodial household or a history of violence between the parents;
(8) evidence that substance abuse by either parent or other members of the household directly affects the emotional or physical well-being of the child;
(9) other factors that the court considers pertinent.
Schmitz, 99 P.3d at 1122-23.
Id.
Borchgrevink v. Borchgrevink, 941 P.2d 132, 137 n. 2 (Alaska 1997).
Hamilton, 42 P.3d at 1111.
In its oral findings, the superior court expressly considered each of the custody factors and found that on balance they weighed in favor of awarding primary custody to JoAnna.
Although the court considered all the statutory best-interest factors, it based its decision primarily on the second factor — the capability and desire of each parent to meet the children's needs — and the fifth factor — the importance of maintaining stability in the children's lives. In addressing the second factor, the court noted that both parents had a strong desire to parent their children and that each parent was "potentially capable of providing for the children's needs." But it found that Grant had "some residual difficulties from the accident, from the collapse of his professional and personal life . . . that need to be addressed first." The court stressed that Grant had "emotional needs that he needs to deal with before he will be as good a parent as he wants to be." As a result of its concern about Grant's emotional stability, the court found that "all of the needs of the children can be better met by Ms. Matthisen."
In addressing the fifth factor — "the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity" — the court noted that the children had received most of their schooling in Washington. In the court's view, it was important to maintain continuity in their education. The court also observed that JoAnna had been the primary care giver throughout the children's lives. Based on these considerations, the court found the children's need for continuity counseled in favor of keeping them with JoAnna.
Although the second and fifth factors figured most prominently in the court's custody decree, the court also considered the remaining factors. With regard to the first factor — the physical, emotional, mental, religious and social needs of the child — the court found that the children were normal children but that Ashleigh was experiencing significant stress as a result of the divorce. It found that she was not working up to potential academically, that she needed stability and certainty and that she needed outside activities beyond attending dog shows. It also noted that Austin was having some speech difficulties that needed to be monitored.
With respect to the third factor — the children's preferences — the court found that the children were too young to express a preference concerning which parent to live with.
The court found that the fourth factor — "the love and affection existing between the child and each parent" — weighed equally in favor of both parents, since both children loved both parents.
AS 25.24.150(c)(4).
With respect to the sixth factor — the willingness of each parent to encourage a close relationship between the children and the other parent — the court noted that JoAnna had at times cut off phone contact between the children and their father. But it further noted that she appeared to have been motivated in part by a concern that Grant's comments to Ashleigh were having a destructive effect on her. More generally, the court also expressed concern that JoAnna was manipulating access to the children in order to exercise power over Grant. It stated that this was not appropriate and that there needed to be much more "open access between the parents and the children."
Although the court's findings did not expressly address Grant's willingness to encourage a close and continuing relationship between JoAnna and the children, as we explain later in this decision, the evidence at trial established that Grant had made serious efforts to undermine JoAnna's relationship with the children — even to the extent of actively interfering with the court's custody order; and the record makes it clear that the trial court attached considerable weight to this evidence.
The seventh factor — child abuse or neglect — did not play a significant role in the court's decision. While noting that there were allegations of some instances of minor domestic violence, the court found that these incidents had not been witnessed by the children.
As to the eighth factor — evidence of substance abuse — the court did not find credible Grant's allegations that JoAnna had been stealing and using his pain medications. The court was not sure whether alcohol and pain medication played a role in the difficulty Grant was having healing emotionally from the accident and the divorce, but it was concerned that Grant might be abusing alcohol and pain medication.
Based on the totality of its findings concerning the statutory factors, the superior court awarded primary physical custody of the children to JoAnna, while giving summer visitation and visitation at either Christmas or Spring break to Grant. And it also ordered open phone and email communication. It ordered that the grandparents be allowed visitation. It ordered the parties to refrain from disparaging each other. Because it was concerned that Grant might be abusing alcohol or pain medication, and because of its concerns about Grant's emotional stability, the court also ordered Grant to undergo a substance abuse assessment and a psychiatric evaluation. Finally, because it found that Grant and JoAnna could not communicate effectively with each other, the court found that an award of joint legal custody would be inappropriate, so it granted sole legal custody to JoAnna.
There is substantial evidence in the record supporting these findings of fact. The report of Ann Larabee, the Alaska custody investigator, supports the court's findings concerning the love the children feel for their parents. The custody investigators' reports also support the court's findings concerning the children's physical, emotional, mental and social needs, the absence of child abuse or neglect, and the minor nature of the domestic violence.
There were two custody investigations, one in Alaska and one in Washington state.
As already noted above, the record also contains evidence supporting the court's findings concerning JoAnna's reluctance to encourage a close relationship between the children and Grant — the sixth custody factor. But the record discloses even more compelling evidence of negative behavior on the part of Grant. For example, in the early stages of the litigation, JoAnna sought interim custody, hoping to keep the children with her in Washington. The court granted this request and declined to order summer visitation with Grant in Alaska. Even though she had no obligation to do so, however, JoAnna allowed the children to visit with Grant in Alaska for two weeks in July, believing that it was important to encourage their relationship with their father. But Grant used the visit as an opportunity to take unfair advantage of JoAnna. Soon after the children returned to Washington, Grant told Ashleigh that she and Austin would be visiting him again in August. He also purchased airline tickets and notified his attorney that JoAnna had agreed to this second visit. Yet according to JoAnna, she had not agreed to this second visit; indeed, Grant had never even mentioned the visit.
The court held an emergency hearing to resolve the matter. At the hearing, JoAnna expressed understandable frustration at what she saw as Grant's attempt to manipulate her into allowing a visit. Yet at the same time, she candidly acknowledged that Ashleigh was really looking forward to the visit, that the previous visit had gone well, that Ashleigh would be very disappointed if she couldn't go, and that both children would enjoy their visit. JoAnna also testified that she believed that Grant could adequately care for them during the visits. As Grant's counsel conceded, "candor and honesty" of the sort JoAnna showed in her remarks is not often seen in divorce proceedings.
Largely on the basis of JoAnna's testimony, the superior court decided to allow the visit. It ordered Grant to return the children to Washington by August 30.
But Grant disregarded the order by failing to return the children on August 30. He kept the children and filed a "stipulation" without JoAnna's consent, supposedly authorizing the children to stay several additional weeks. He then enrolled the children in school in Alaska. Grant's actions forced JoAnna to travel to Anchorage in order to retrieve the children. By the time they returned to Washington, they had already missed several weeks of their usual school. As a result, Ashleigh had significant difficulties adjusting to her school work.
Grant's behavior in manipulating JoAnna and Ashleigh and in refusing to return the children to Washington by the court-ordered date provides telling evidence of his willingness to impede the children's relationship with JoAnna.
The record likewise supports the court's findings that the children need stability and that this need would best be served by keeping them in Washington during the school year. Ashleigh, in particular, had difficulty when her schooling was disrupted by Grant's failure to return her to Washington in time for the start of the 2002-2003 school year. The record also shows that Ashleigh has been quite upset by conflicting messages from her parents concerning whether they were going to reconcile and what the visitation schedule would be.
Furthermore, the record supports the court's finding that Grant might have a substance abuse problem and that he should undergo an assessment. JoAnna testified that Grant had been drinking a lot since the separation and that she was worried about his use of alcohol and medication. In her custody investigation report, Ann Larabee expressed concern that Grant might be abusing alcohol and prescription medications based on "[t]he intensity of Father's denial of problems in this area." Although Grant presented a witness who believed that Grant did not have a problem with drugs or alcohol, the court's finding that Grant might have a substance abuse problem is supported by the record.
The record also supports the court's refusal to credit Grant's allegations that JoAnna had used 1,100 of his pain pills. Judge Morse had ample opportunity to evaluate JoAnna's demeanor and comportment throughout the divorce proceedings. JoAnna's behavior and the lack of corroborating evidence to support Grant's allegations provide a sufficient basis for finding that JoAnna had not been stealing and using Grant's pain medication.
Most important, the record contains substantial evidence supporting the court's findings concerning the parties' ability to parent their children. Teri Jennings, the Washington child custody investigator, reported that JoAnna's house and yard were clean and that, "[w]hile there are currently 4 dogs in residence, the yard was neat and tidy, and there was absolutely no evidence of any dog feces in the area." She further reported that
[t]he inside of the home appeared to be well-maintained. . . . Ms. Matthisen explained that all of the furnishings in the home were donated by friends. In spite of the hand-me-down nature of the furnishings, they were stylish and clean. . . . At no time during the visit did I detect any sort of an "animal" smell in the home, or any "cover up" fragrance.
Jennings also reported that the children had their own rooms and that they had many toys.
Jennings interviewed Ashleigh's first- and second-grade teachers. Ashleigh's first-grade teacher reported that JoAnna had informed her of the parties' separation and had asked the teacher to let JoAnna know if there were any problems. Jennings reported that Ashleigh's second-grade teacher described JoAnna as "really together."
Based on all the information she received in her investigation, Jennings concluded:
Ms. Matthisen is a good parent. . . . The children respond well to her and there appears to be a strong bond between them and their mother. There was nothing in the evidence I reviewed or in my interactions with Ms. Matthisen that would suggest that she has any emotional or mental problems.
Ann Larabee, the Alaska custody investigator, reported that Grant's "allegations that [JoAnna] is mentally ill appear to be so far from the truth that they raise questions regarding Father's grounding in reality." Larabee stated that
[Grant's] decision to file perjury charges against all of [JoAnna's] affiants in this case, his pressured speech, rambling writing, and disjointed conversations lead the Investigator to question the stability of his current emotional state.
She also reported that Grant's behavior was having adverse effects on the children. In particular, she stated that his failure to return the children by the court-ordered date at the end of the August visitation period represented an "attempt to take custody matters into his own hands, disregarding the court's order and the children's well being." She reported that "Ashleigh's adjustment to school in Washington has been complicated by her late start." She noted in addition that
[Grant's] latest reported action, telling his daughter that the parents are reconciling and [JoAnna] and the children will be moving to Alaska, caused yet more distress for Ashleigh. . . . [Grant] appears to be driven by his quest to win custody and prove himself the better parent, and in the process may have lost perspective on the children's needs.
Larabee's report supports Judge Morse's evaluation of Grant's ability to parent the children capably.
In addition to the custody investigators' reports, the record contains conflicting testimony and affidavits from friends of the parties attesting to each party's ability as a parent. We need not restate that evidence here; suffice it to say that JoAnna's witnesses testified that she was an excellent parent and Grant's witnesses testified that he was an excellent parent. Grant has alleged almost since the beginning of this proceeding that JoAnna and her witnesses are committing fraud and perjury and that therefore the court should not rely on the testimony of her witnesses. The court did not credit these allegations. It found JoAnna and her witnesses to be more credible than Grant's. We have repeatedly emphasized that "[i]t is the trial court's function, and not that of a reviewing court, to judge the credibility of the witnesses and to weigh conflicting evidence." We will not second-guess the trial court's evaluation of the credibility of these witnesses. In sum, the court's factual findings concerning the custody factors are not clearly erroneous.
Penn v. Ivey, 615 P.2d 1, 3 (Alaska 1980); see also Grober v. State, CSED, 956 P.2d 1230, 1235 n. 9 (Alaska 1998).
Once a court has made factual findings under AS 25.24.150(c), it must consider the totality of the facts to make an ultimate custody determination. We evaluate this decision for an abuse of discretion.
West v. West, 21 P.3d 838, 841 (Alaska 2001).
With respect to several of the factors — the children's love for their parents, the parents' desire to raise their children, and the lack of evidence of abuse or neglect — there were no differences between the parents. With respect to the parents' willingness to encourage a healthy relationship between the children and the other parent, substantial evidence supported tipping the balance in JoAnna's favor: although each parent had interfered with the other's parental relationship, Grant's interference could easily be viewed as being much more extensive and damaging. Finally, the record supports the superior court's determination that the most central factors — the stability of the children's environment and the ability of the parties to adequately parent the children — weighed decisively in favor of JoAnna. On balance, then, the superior court did not abuse its discretion.
B. Other Issues
Grant also raises several legal and constitutional issues. We review these issues de novo. Under this standard, we will adopt the rule of law that best complies with precedent, reason and policy.
Holding v. Municipality of Anchorage, 63 P.3d 248, 250 (Alaska 2003) (constitutional questions); Washington Ins. Guar. Ass'n v. Ramsey, 922 P.2d 237, 240 n. 10 (Alaska 1996) (personal jurisdiction); Andrews v. Alaska Operating Engineers-Employers Training Trust Fund, 871 P.2d 1142, 1144 (Alaska 1994) (subject matter jurisdiction).
Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979).
Grant argues that the Alaska superior court lacked subject matter jurisdiction over the divorce for several reasons. He suggests first that the district and magistrate courts lack boundaries and therefore have no jurisdiction at all. He cites no relevant authority for this proposition. Moreover, this divorce action was heard by the superior court, not by the district or magistrate courts.
Grant also argues that the superior courts as presently organized fail to comply with the Alaska Constitution. But article IV, section 1 of the Alaska Constitution creates the superior court as a court of general jurisdiction and gives the legislature authority to define the court's jurisdiction:
The judicial power of the State is vested in a supreme court, a superior court, and the courts established by the legislature. The jurisdiction of courts shall be prescribed by law. The courts shall constitute a unified judicial system for operation and administration. Judicial districts shall be established by law.
Alaska Const. art. IV, § 1.
Alaska Const. art. IV, § 1.
Article IV, section 3 of the Alaska Constitution expressly provides that the superior courts are courts of general jurisdiction and authorizes the legislature to change the number of judgeships.
Alaska Const. art. IV, § 3. Grant notes that the constitution provides for one court and not several courts. He is apparently confused by the practice of referring to each judge as "the court." But the many judges and courts constitute the overall superior court, as provided for in the constitution. Both the individual judges and the overall system are referred to as "the court."
The legislature exercised its constitutional power to change the number of superior courts in AS 22.10.120, which authorizes all current superior court judgeships. As courts of general jurisdiction, the superior courts "hav[e] the power to hear all controversies which may be brought before [them] within the legal bounds of rights or remedies, except insofar as has been expressly and unequivocally denied by the state's constitution or statutes." The legislature created a cause of action for divorce in AS 25.24.010, and did not limit the superior court's authority to hear divorces. Accordingly, superior courts have subject matter jurisdiction over divorce actions.
Siggelkow v. State, 731 P.2d 57, 61 (Alaska 1987) (emphasis in original).
Grant also argues that other statutory language indicates the courts' lack of jurisdiction. He notes that the court is sometimes said to "assume" jurisdiction and that "assume" means "pretend, similate [sic], feign." Grant concludes from this that the court has exercised pretend jurisdiction. But the word "assume" also means "to undertake"; this is the meaning that is used when a court assumes jurisdiction. Equally speciously, Grant contends that though the courts may have the authority to enter orders, they do not have the authority to render orders. But in the context of judicial action, to enter an order is the same thing as to render an order.
Grant also argues that the court lacked personal jurisdiction because he did not consent to its exercise of authority over him. But AS 09.05.015 provides that the Alaska courts have personal jurisdiction over a defendant who "is a natural person domiciled in this state." The record is replete with evidence that Grant does, in fact, live in Alaska and intends to remain here. He is therefore domiciled in the state, so the exercise of personal jurisdiction is proper.
Grant argues that because he does not agree that the parties are incompatible, the court could not grant a divorce on those grounds. But Alaska's divorce statute, in contrast with its dissolution statute, does not require both spouses to agree on the issue of incompatibility. And even if consent were required, Grant's counterclaim for divorce on grounds of incompatibility amounts to an admission of grounds for divorce.
Compare AS 25.24.010 (providing that "[a] husband or wife may maintain an action against the other for divorce or to have the marriage declared void." (emphasis added)) and AS 25.24.050 (which provides in relevant part that "[a] divorce may be granted for any of the following grounds . . . (5) . . . (C) incompatibility of temperament. . . .") with AS 25.24.200 (providing in relevant part that, "[a] husband and wife together may petition the court for the dissolution of their marriage . . . if the following conditions exist at the time of filing the petition: (1) incompatibility of temperament has caused the irremediable breakdown of the marriage. . . ."). See also Bass v. Bass, 437 P.2d 324, 327 (Alaska 1968) (finding that an incompatibility divorce had properly been granted even though one party "contend[ed] that the superior court's finding of an existing incompatibility of temperament was clearly erroneous").
Finally, relying on Planned Parenthood of Southeastern Pennsylvania v. Casey, Grant argues that the United States Constitution protects his right to raise his family. While it is true that the Supreme Court has often stressed the importance of parents' rights to control the upbringing of their children, the Court has repeatedly emphasized that this right is not absolute. Indeed, where the best interests of a child require it, a state may terminate parental rights provided that the proper procedural safeguards are observed. The Court has never intimated, much less expressly held, that the Constitution would bar an award of primary custody to one of two parents in the context of a divorce proceeding. Where, as here, the statutory best-interest factors have been considered and the parties' procedural rights have been observed, awarding primary custody to one parent does not violate the other's constitutional rights.
505 U.S. 833 (1992).
Wisconsin v. Yoder, 406 U.S. 205, 213-14, 232-34 (1972); Ginsberg v. State of N.Y., 390 U.S. 629, 639 (1968); Prince v. Massachusetts, 321 U.S. 158, 165-66 (1944).
See, e.g., M.L.B. v. S.L.J., 519 U.S. 102 (1996); Santosky v. Kramer, 455 U.S. 745 (1982).
IV. CONCLUSION
We AFFIRM the superior court's judgment.