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Cusack v. Cusack

Supreme Court of Alaska

March 13, 2009

Gretchen A. CUSACK, Appellant,
v.
John P. CUSACK, Appellee.

Page 1157

G.R. Eschbacher, Anchorage, for Appellant.

Kathleen A. Weeks, Anchorage, for Appellee.

Before : FABE, Chief Justice, MATTHEWS, EASTAUGH, and WINFREE, Justices.

OPINION

WINFREE, Justice.

I. INTRODUCTION

Divorced parents dispute custody of their daughter. The mother appeals the most recent superior court decision (1) awarding sole legal and primary physical custody to the father, (2) authorizing the father to send the daughter to boarding school, and (3) rejecting the mother's request for court-ordered family therapy. Because the court's findings are not clearly erroneous and the court did not abuse its discretion, we affirm.

Page 1158

II. FACTS AND PROCEEDINGS

John and Gretchen Cusack married in May 1988, and their daughter was born in October 1993. John and Gretchen divorced in December 1998. The post-divorce custody order issued in 2000 by Superior Court Judge Sen K. Tan provided for joint legal custody and for primary physical custody with Gretchen, who was then living in Colorado. The custody order also provided John regular visitation in Alaska.

In August 2003 Judge Tan entered an interim modification order for the daughter to remain in Alaska with John as the primary physical custodian, providing for visitation with Gretchen only in the Anchorage area. The order was precipitated by a letter to the State of Alaska, Division of Family and Youth Services, from two of the daughter's therapists in Colorado. The letter described the daughter's reports of Gretchen's " violent outbursts, often involving physical altercations." The letter also described " physical and verbal outbursts" between Gretchen and John in the daughter's presence and noted that Gretchen " continues to deny to [the daughter] that the couple is divorced."

Judge Tan appointed a new custody investigator and a guardian ad litem for the daughter. The custody investigator, Susan Arth, recommended that John be awarded sole legal custody and primary physical custody and that Gretchen be granted visitation. Arth found problems with each parent, but ultimately concluded that the daughter " desperately wants to be with Father" and it would be " untenable for the child to be forced to remain in a situation where her primary relationship is fraught with stressful conflict." In September 2003 Judge Tan modified the interim order to give John sole legal and primary physical custody of the daughter, with visitation for Gretchen. After a full evidentiary hearing in March 2004, Judge Tan entered a final order mirroring the September 2003 interim order.

In January 2006 Judge Tan appointed a new custody investigator, Pamela Montgomery, to determine whether the visitation schedule should be revised because Gretchen had returned to Alaska from Colorado. Judge Tan subsequently ordered a full custody investigation. Montgomery's initial October 2006 report was critical of both parents. She reported that the daughter described conflicts with Gretchen that " escalate into huge verbal arguments and, at times, physical confrontations." She also reported her own observation of a confrontation between Gretchen and the daughter that came close to physical violence. While also critical of John's loud and occasionally crass behavior, she reported that the daughter " has done well in her father's care."

Montgomery filed another report in May 2007 recommending that the daughter be enrolled " in a residential college-prep boarding school outside of Alaska, and that her in-person contact with her parents be limited to summers and school vacations only." Montgomery alternatively proposed:

If the Court and parents don't choose to allow [the daughter] to disengage from this custody dispute by attending a boarding school and limiting her contact with both her parents, then it is suggested that [she] spend two weeks with her mother and two weeks with her father during the school year, half of the summer with each parent, alternating winter breaks and alternating spring breaks. During that two week time period, there would be no in-person contact ...

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