Supreme Court No. S-11643.
May 17, 2006.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, William F. Morse, Judge. Superior Court No. 3AN-01-7662 Civil.
Robert C. Erwin, Robert C. Erwin, LLC, Anchorage, for Appellant.
Marguerite Humm, Alaska Legal Services Corporation, Anchorage, for Appellee.
Before: Bryner, Chief Justice, Matthews, Eastaugh, Fabe, and Carpeneti, Justices.
Entered pursuant to Appellate Rule 214.
1. Donny Peters appeals from an order granting his ex-wife, Cyndee LaVonne, sole legal and primary physical custody of their son. The order also denies Peters all visitation with his son until Peters completes a course for perpetrators of domestic violence. Peters argues that the superior court should have granted the request he made for a continuance. Because the motion was denied, Peters had to proceed pro se. Peters further contends that the superior court abused its discretion when it denied him even supervised visitation. We conclude that in light of Peters's history of delay, the court acted within its discretion when it denied a continuance. We further conclude that the superior court made sufficient findings to support its decision temporarily to deny Peters visitation with his child. We therefore affirm the superior court's order.
Donny Peters has had numerous last names. We will refer to him as Donny Peters, the name he re-adopted when he divorced Cyndee LaVonne.
2. The second attorney to represent Peters in this case, filed, at Peters's request, a motion to withdraw on August 6, 2004, the business day before the trial was to start. The attorney filed a motion for a continuance at the same time. The superior court addressed the continuance motion the morning that trial was scheduled to begin. After describing the case as categorized "by just extraordinary delay," largely because of Peters and his slowness in seeking out counseling and obtaining a psychological evaluation, the superior court denied the continuance.
3. In an effort to absolve himself of fault, Peters argued to the superior court that he discovered the business day before the trial that his attorney was not adequately prepared. The superior court explained that even if Peters's allegations were true, his failure to discover the problem earlier showed his "lack of concern" about the case.
4. When a party's attorney withdraws right before trial, the party does not automatically have the right to a continuance, since that would permit parties wishing to delay to do so just by discharging their attorneys. Instead, the trial court has discretion about whether or not to grant a continuance. This court reviews the decision for abuse of discretion. When determining whether an abuse of discretion has occurred, we assess "[t]he particular facts and circumstances of each case" to determine if "a party has been deprived of a substantial right or seriously prejudiced." Peters argues that his substantial right to participate in the upbringing of his child was at stake in the trial and that he suffered serious prejudice when forced to proceed pro se. A determination of the right at stake and the possibility of prejudice is not the end of the abuse of discretion analysis, however. If the party requesting the continuance was "not free from fault or [did] not use due diligence to obtain substitute counsel," superior courts are generally well within their discretion to deny the continuance. "Absent unusual circumstances, we will not substitute our judgment for that of the trial court in determinations involving diligence of parties. . . ."
Barrett v. Gagnon, 516 P.2d 1202, 1203 (Alaska 1973).
Taylor v. Gill Street Invs., 743 P.2d 345, 349 (Alaska 1987).
Compare, e.g., Mack v. Mack, 816 P.2d 197 (Alaska 1991) (determining that because the party requesting the continuance, or her attorney, was the cause of any hardship, the superior court did not abuse its discretion when denying the continuance); Taylor, 743 P.2d 345 (concluding that the party requesting the continuance had plenty of opportunity to hire replacement counsel, that the party had been warned no further continuances would be granted, and that the trial court had therefore not abused its discretion by denying the continuance); Siggelkow, 643 P.2d 985 (holding that the trial court did not abuse its discretion when denying the continuance because the party had waited until the last moment to hire an attorney); and Gottschalk v. State, 602 P.2d 448 (Alaska 1979), cert. denied, 447 U.S. 920 (1980) (determining that the trial court was within its discretion to deny a continuance when the party had only his own lack of diligence to blame for his lack of representation); with Barrett, 516 P.2d 1202 (deciding that the trial court should have granted the continuance when the requesting party was diligent in attempting to retain new counsel); and State v. George, 511 P.2d 1293 (Alaska 1973) (holding that the trial court should have granted the continuance in part because the requesting party received late notice of the hearing and needed additional time to prepare).
Taylor, 743 P.2d at 349.
5. The facts of this case support the superior court's finding that Peters bore responsibility for much of the significant delay in this case. In September 2001 the superior court ordered Peters to undergo a psychological evaluation. Peters first made an appointment for March 2002 but left without seeing the psychologist after the psychologist was late for the appointment. Months elapsed before Peters next tried to make an appointment. He then failed to confirm the appointment, which resulted in its cancellation. Peters finally met with the psychologist for the first time on July 29, 2003.
6. The superior court's remarks the morning of trial were not the first it had made about delays Peters had caused. Throughout the period that Peters was supposed to schedule an appointment with the psychologist, he was represented by counsel. Shortly before Peters's trial had initially been scheduled to begin in August 2003, his first attorney withdrew from the representation, citing "a complete breakdown in the attorney client relationship." Peters requested appointed counsel. The superior court deemed Peters's request "untimely" because Peters's "failure to do anything in this case makes the Court suspicious of the request," but, noting the importance of the rights involved in child custody cases and the drawbacks of proceeding without an attorney, ultimately appointed new counsel and vacated the August 2003 trial date so that Peters could consult his new attorney.
7. Because over three years elapsed between the filing of the complaint for divorce and the date the rescheduled trial was to begin, and because the evidence supports the superior court's finding that Peters was at fault for much of the delay, we conclude that the superior court could properly view Peters's request for a continuance as an additional stalling tactic. As a result, the superior court did not abuse its discretion when it denied Peters a continuance.
8. Once the superior court determined that Peters had consented, it immediately granted his second attorney's motion for withdrawal. As a result, the superior court did not advise Peters that if his attorney withdrew, he would have to proceed pro se. In his initial brief to this court, Peters argued the superior court had erred by refusing to grant the motion for a continuance. He did not argue that the superior court erred by granting the motion to withdraw without advising him of the repercussions. To the extent that Peters made a failure-to-advise argument, he did so in his reply brief. Because Peters waived the argument by raising it for the first time in his reply brief, we decline to determine whether the superior court's failure to advise constituted error.
E.g., Alaska R. App. P. 212(c)(3) (the reply brief "may raise no contentions not previously raised in either the appellant's or appellee's briefs"); Reust v. Alaska Petroleum Contractors, Inc., 127 P.3d 807, 819 (Alaska 2005).
9. At the end of the trial, the superior court decided that until Peters completed an approved course for perpetrators of domestic violence, he could have no visitation with his son. We reverse "a trial court's custody determination if critical factual findings were clearly erroneous or if there has been an abuse of discretion." A finding of fact is "clearly erroneous if a review of the entire record leaves [the court] firmly convinced that a mistake has been made." A trial court abuses its discretion when it "consider[s] improper factors," "fail[s] to consider relevant statutory factors," or "assign[s] disproportionate weight to some factors while ignoring others." We have previously decided that if a trial court wants to require supervised visitation, it must support that decision with "findings that specify how unsupervised visitation will adversely affect the child's physical, emotional, mental, religious, and social well-being and the other interests set out at AS 25.24.150." It logically follows that a superior court temporarily denying all visitation must make a similar finding about how visitation will adversely affect the child.
West v. West, 21 P.3d 838, 841 (Alaska 2001).
J.F.E. v. J.A.S. 930 P.2d 409, 413-14 (Alaska 1996).
10. The superior court made sufficient findings to justify temporarily denying Peters visitation with his son. Not only did the superior court discuss all of the AS 25.24.150 custody factors in the course of making its custody decision, but it also made specific findings about the danger Peters, untreated, posed to the child. At the end of the trial, the superior court described its belief that Peters had "exhibited the controlling behavior towards Ms. LaVonne, towards [his step-daughter], and that [he] would be in danger of doing the same to [his son] if I was to allow interaction." The court also found Peters's "untreated emotional situation" to present a threat to his son. Then, in its written final child custody order, the superior court found that "Peters has a history of abusing those with whom he is in a domestic or parenting relation." The court remarked that "Peters' history of controlling and abusive conduct requires that he not be a part of [his child's] life until Peters undergoes difficult change."
11. The evidence presented at trial clearly supports the superior court's findings. One of Peters's former spouses and a former step-daughter testified that Peters had abused them. LaVonne and her mother both testified that Peters abused LaVonne and her daughter. Peters admitted one of the incidents, in which he washed LaVonne's daughter's mouth out with soap, causing her to bleed. In its order, the superior court found the testimony that Peters had emotionally and physically abused LaVonne, her daughter, and a former step-daughter to be credible. The psychologist's evaluation of Peters, in which he described Peters as someone who, "unable to adequately contain [his] internal tension . . . discharges, either verbally or at times, physically," also supports the superior court's findings.
12. We note that the superior court's order does not permanently deny Peters visitation with his son. Instead, the superior court explicitly invited Peters, once he had completed a program for perpetrators of domestic violence, to submit proof to the court, which would then decide whether to issue a new visitation order.
13. For the above reasons we AFFIRM the superior court's denial of a continuance and its decision to deny Peters all visitation with his son until after Peters has completed an approved course for perpetrators of domestic violence.