Opinion
Supreme Court No. S-12345.
Filed: April 11, 2007.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Craig F. Stowers, Judge., Superior Court No. 3AN-04-6487 Civil.
Terry C. Aglietti, Aglietti, Offret Woofter, Anchorage, for Appellant.
Hal P. Gazaway, Anchorage, for Appellee.
Before: Fabe, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d). Accordingly, this memorandum decision may not be cited for any proposition of law or as an example of the proper resolution of any issue.
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
I. INTRODUCTION
Ulf Petersen is appealing the superior court's decision granting Erica Richie sole legal and primary physical custody of their two children, seventy percent of the marital property, and $8,000 in attorney's fees. We find that the superior court did not abuse its discretion and therefore affirm.
II. FACTS AND PROCEEDINGS
Ulf Petersen and Erica Richie were married in 1990. They have two children — Bjorn, born in 1993, and Cora, born in 1995. Erica filed for divorce in 2004. Divorce was granted on June 8, 2005, but child custody and property issues were reserved for a later trial.
Erica Richie was Erica Petersen until June 8, 2005, when her divorce was granted.
A custody investigator issued a court-ordered report on March 4, 2005, that recommended that Erica be awarded sole legal and primary physical custody of the children and suggested a possible visitation schedule for Ulf. Since Erica had expressed a desire to relocate to Texas, the superior court ordered a supplemental custody recommendation in the event that the move occurred. The custody investigator recommended a visitation schedule to use if Erica moved to Texas but stated that she did not believe the move was in the best interest of the children.
The supplemental report did not contain specific recommendations regarding which parent should have legal custody of the children in the event that Erica moved to Texas. At trial the custody investigator clarified that she thought legal custody should still go to Erica in this situation.
A one-day trial was held on November 23, 2005. The superior court awarded sole legal and primary physical custody of the children to Erica, both in the event that she remained in Alaska and in the event that she moved to Texas. The superior court set out two visitation schedules for Ulf depending on whether Erica and the children resided in Alaska or Texas. The superior court also awarded Erica seventy percent of the parties' small marital estate and ordered Ulf to pay Erica $8,000 for attorney's fees.
Ulf appeals the custody award, the seventy-thirty property division, and the award of attorney's fees.
III. DISCUSSION
A. The Superior Court Did Not Abuse Its Discretion by Awarding Sole Legal and Primary Physical Custody of the Children to Erica.
The superior court must award child custody based on the best interests of the child, taking into consideration nine factors listed in AS 25.24.150(c). This court reviews child custody decisions for abuse of discretion, which occurs "when we are left with a definite and firm conviction, after reviewing the whole record, that the trial court erred in its ruling." In child custody cases, we will find the superior court abused its discretion if it "considered improper factors in making its custody determination, failed to consider statutorily mandated factors, or assigned disproportionate weight to particular factors while ignoring others." Factual findings are overturned if they are clearly erroneous, meaning that "a review of the entire record firmly convinces us that a mistake has been made."
AS 25.24.150(a).
Silvan v. Alcina, 105 P.3d 117, 120 (Alaska 2005).
Id.
Schmitz v. Schmitz, 88 P.3d 1116, 1121 (Alaska 2004).
The superior court adopted the thirty-page Findings of Fact and Conclusions of Law prepared by Erica in its entirety. Ulf argues that there is no "material evidentiary support in the trial record" for most of the findings and that the award of custody to Erica in light of Erica's plans to relocate to Texas was not in the best interest of the children.
1. Erica's proposed move to Texas
In Moeller-Prokosch v. Prokosch ( Moeller I) we held that "[n]o Alaska law allows a court to require a custodial parent to [forgo] relocation if custody with that parent remains in the child's best interests and the relocation is not for an illegitimate reason." "[A] proposed move is legitimate if it was not primarily motivated by a desire to make visitation . . . more difficult." If a move is found to be legitimate, "the court should not hold the move against the party who proposes to move." In other words, the court may not consider the move "as a negative best-interests factor personal to [a parent]." Instead the court should assume for the purpose of adjudication that a move will occur and then determine the best interests of the child using the factors found in AS 25.24.150(c).
27 P.3d 314, 317 (Alaska 2001).
Id. at 316 (quotations omitted) (alteration in original).
Moeller-Prokosch v. Prokosch ( Moeller II), 53 P.3d 152, 155 (Alaska 2002).
Id. at 157.
Silvan v. Alcina, 105 P.3d 117, 121 (Alaska 2005). While the move itself cannot be held against the relocating parent, the court should consider "the impact of the move on the child" when assessing what custody arrangement is in the child's best interests. Moeller I, 27 P.3d at 317.
In the case at hand the superior court found that "[n]othing suggests Ms. Richie's desire to move is primarily motivated by a desire to make visitations more difficult for Mr. Petersen." This finding was not clearly erroneous. Erica testified that she wanted to go to Texas because of the greater job and educational opportunities and lower cost of living and emphasized the importance of the fact that her father and stepmother live there along with an extended step-family. This court has upheld less compelling reasons to move.
See, e.g., Silvan, 105 P.3d at 121 (upholding a superior court's finding that "a desire to get away from the State of Alaska" was "a legitimate reason to move") (quotations omitted).
Ulf does not claim that Erica is planning to move for the purpose of limiting his access to the children. Rather, Ulf emphasizes the finding of the custody investigator that the move to Texas itself is not necessary. Under the case law described above, the court may not hold the proposed move against Erica since it determined that Erica's reasons for the move are legitimate. The court acted appropriately when it assumed that Erica would move to Texas and then considered the best interests of the children in the event that the move occurred.
2. The best interests analysis under AS 25.24.150(c)
Alaska Statute 25.24.150(a) requires the superior court to award custody on "the basis of 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) in the following manner:
These factors are:
(1) the physical, emotional, mental, religious, and social needs of the child;
(2) the capability and desire of each parent to meet those 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 . . . ;
(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.
While a court determining custody must always consider each of these statutory factors, it need not refer to all of them in explaining its custody decision. The court needs only to discuss those factors that it considers actually relevant in light of the evidence presented in the case before it; express mention of each factor is not required, but the court's findings must at a minimum give us a clear indication of the factors which [it] considered important in exercising its discretion or allow us to glean from the record what considerations were involved.
Park v. Park, 986 P.2d 205, 207 (Alaska 1999) (alteration in original) (quotations and citations omitted).
In its conclusions of law, the superior court discussed each of the nine factors in AS 25.24.150(c) except the substance abuse factor, which is presumably inapplicable. It focused primarily on subsections .150(c)(1)-(2) and (5)-(7). Based on its analysis of these factors, the superior court awarded Erica sole legal and primary physical custody of the children both in the event that she stayed in Alaska and in the event that she moved to Texas. A visitation schedule was set forth for Ulf under both possible scenarios.
The superior court did not abuse its discretion in this custody award. It considered each factor and did not place disproportionate weight on any one factor. All of its controlling factual findings were supported by findings in the custody report or testimony at trial. For example, there is evidence indicating that Ulf may not be capable of meeting Bjorn's mental health needs, that Ulf's disciplinary style is problematic, and that providing a stable environment for the children might not be a high priority for Ulf. There was also testimony that tended to show that Erica had the ability and inclination to foster a relationship between the children and Ulf, and that Ulf had in the past failed to communicate important information about the children's whereabouts to Erica.
While the trial court is not required to follow the custody investigator's recommendations, "it is within the trial court's discretion to give the [custody investigation] report the amount of weight the court deems appropriate." Chase v. Chase, 109 P.3d 942, 946 (Alaska 2005).
Ulf contests many of the court's findings and conclusions, stating that he has no "confidence that the trial judge did anything other than sign off on Erica's proposed findings." While it is true that the superior court adopted Erica's thirty-three page Findings of Fact and Conclusions of Law without making any changes, these findings do have support in the record. Ulf's testimony may have conflicted with the report and Erica's testimony, but it was within the trial court's discretion to decide to give little weight to Ulf's conflicting views.
See Casey v. Semco Energy, Inc., 92 P.3d 379, 382 (Alaska 2004) ("It is the function of the superior court, rather than this court, to weigh conflicting evidence and assess the credibility of witnesses." (citing Krossa v. All Alaskan Seafoods, Inc., 37 P.3d 411, 415 (Alaska 2001))).
Ulf argues that circumstances had changed since the custody report since by the time of trial he had a stable residence, he had attended counseling sessions with Cora, Cora had completed counseling, and Bjorn's grades had improved significantly. While these are all positive developments, they do not offset the evidence in the record of problems related to Ulf's parenting and communication skills to such an extent that we can find that the superior court clearly erred in finding the facts or abused its discretion in awarding custody. B. The Superior Court Did Not Abuse Its Discretion When It Awarded Erica Seventy Percent of the Marital Property.
The superior court "exercises broad discretion in the division of marital assets." A division of marital property is reviewed for abuse of discretion and will not be overturned unless it is clearly unjust. Ulf argues that the superior court abused its discretion in awarding Erica seventy percent of the marital property because it did not appreciate the fact that "Erica's poor financial picture was precisely her own doing."
Veselsky v. Veselsky, 113 P.3d 629, 632 (Alaska 2005).
Gallant v. Gallant, 945 P.2d 795, 803 (Alaska 1997).
"Although an equal division of property is presumed to be the most equitable, the trial court has broad discretion to deviate from absolute equality." Alaska Statute 25.24.160(a)(4) requires the superior court to consider nine factors when determining how to divide the property, including the following:
Ulsher v. Ulsher, 867 P.2d 819, 822 (Alaska 1994).
(A) the length of the marriage and station in life of the parties during the marriage;
(C) the earning capacity of the parties, including their educational backgrounds, training, employment skills, work experiences, length of absence from the job market, and custodial responsibilities for children during the marriage;
(D) the financial condition of the parties, including the availability and cost of health insurance;
(E) the conduct of the parties, including whether there has been unreasonable depletion of marital assets[.]
The superior court reviewed these factors and found that the disparity in earnings, Erica's lack of health insurance, and her excessive debt load warranted an award of seventy percent of the marital estate to Erica. It noted that after Erica completed her bachelor's degree she focused on earning money to support the family while Ulf worked on his graduate education. Erica owes $10,000 in student loans, on which she could not make payments towards the end of the marriage. Ulf now works for the State of Alaska earning over $50,000 per year with full benefits, while Erica makes $11.50 per hour working for the Boys and Girls Club and does not have health insurance. Ulf's higher income and better prospects are due in part to the graduate education he received during the marriage. Ulf does not dispute the superior court's findings regarding the parties' relative salaries, benefits, and debt levels.
These findings justify the superior court's departure from a fifty-fifty division of the marital estate. While we consider the percentage imbalance to be high, the real differential is not great because the marital estate is relatively small — $140,256. By awarding Erica seventy percent, she receives approximately $98,000 — only about $28,000 over what she would have received under a fifty percent split. We do not find this to be an abuse of discretion in light of the disparity in the parties' relative financial situations and education levels.
Ulf appears to suggest Erica should be penalized for losing her job and refusing to seek employment as a teacher. Ulf does not, however, elaborate on why the job loss should be held against Erica. He might be trying to argue that the superior court abused its discretion by failing to find that Erica's conduct constituted an "unreasonable depletion of marital assets." We find this argument unconvincing. Erica cannot work as a teacher because she does not yet have teaching credentials. Moreover, Erica lost her job after being hospitalized for severe depression and testified that she tried unsuccessfully to find a job that paid a higher wage. These facts do not show that Erica unreasonably depleted her marital assets.
AS 25.24.160(a)(4)(E).
Ulf seems to think Erica should have sought work as a substitute teacher. However, he does not offer any information about the availability, consistency, salary, or qualifications associated with such employment.
Ulf also argues that Erica will have lower expenses in Texas since she will be living with her father. But he provides no evidence showing that she does not plan on finding her own place. Erica's testimony suggests that she plans to obtain her own housing in Texas.
C. The Superior Court Did Not Abuse Its Discretion When It Awarded Erica $8,000 in Attorney's Fees.
Alaska Statute 25.24.140(a)(1) enables the superior court to award attorney's fees in divorce cases. Each party should bear their own costs if their earning capacity and economic situation is similar; "[o]therwise, awards of attorney's fees are committed to the trial court's discretion." Ulf argues that it was an abuse of discretion for the superior court to award Erica $8,000 in attorney's fees since "the record proves an essential equality of earning power; impacted only by Erica['s] self-imposed refusal to seek employment." The superior court's attorney's fees award was not an abuse of discretion for the same reason that its property division was not — Erica earns less than Ulf and is in a more precarious financial situation.
Schmitz v. Schmitz, 88 P.3d 1116, 1130 (Alaska 2004).
Ulf also argues that the seventy percent property division award makes Erica better able to afford her own attorney's fees. The award does help her financially, but given the size of the marital estate we do not find that these funds remedy her situation to the point that the superior court abused its discretion in making the award.
IV. CONCLUSION
We hold that the superior court did not abuse its discretion. Therefore, we AFFIRM its decision awarding Erica primary physical and sole legal custody of the children, seventy percent of the marital estate, and $8,000 in attorney's fees.