Kenneth M. OSTERKAMP, Appellant/Cross-Appellee,
Kattaryna STILES, Appellee/Cross-Appellant.
[Copyrighted Material Omitted]
Mary A. Gilson and Allison E. Mendel, Mendel & Associates, Anchorage, for Appellant/Cross-Appellee.
Robert C. Erwin and Roberta C. Erwin, Robert C. Erwin, LLC, Anchorage, for Appellee/Cross-Appellant.
Before: CARPENETI, Chief Justice, FABE, WINFREE, and CHRISTEN, Justices.
Kenneth Osterkamp appeals the award of sole physical and legal custody of Simon Stiles  to his adoptive mother, Kattaryna Stiles. Ken and Kattaryna were Simon's
foster parents from one week after Simon was born until Kattaryna adopted Simon when he was sixteen months old. Ken and Kattaryna continued to raise Simon together as domestic partners until Simon was twenty months old, at which point Kattaryna separated from Ken. After Kattaryna began limiting Ken's visitation, he filed a complaint for custody and visitation. The superior court denied Ken custody, concluding that he did not meet the substantive requirements for a third party seeking custody over the objection of the legal parent. It concluded that between the time Kattaryna adopted Simon and the time Ken filed suit, Ken had not established psychological parent status. The superior court did not reach the question of whether Ken met the substantive requirements for a third party seeking visitation. We affirm the superior court's award of legal and physical custody to Kattaryna because we agree that Ken did not establish by clear and convincing evidence that awarding sole custody to Kattaryna would be clearly detrimental to Simon; it was not clearly erroneous for the superior court to conclude that at the time Ken filed his complaint he was not Simon's psychological parent. Given the already protracted length of these proceedings, we reach the merits of the visitation issue and conclude that Ken did not prove by clear and convincing evidence that it would be in Simon's best interests for the court to order visitation over Kattaryna's objection.
Ken also appeals the superior court's credit of loan payments to Kattaryna, the award of attorney's fees to Kattaryna, and the issuance of a writ of assistance without proper notice. Kattaryna cross-appeals the superior court's order requiring her to repay money she received from Ken's parents. We affirm the superior court's rulings on property issues and attorney's fees, but conclude that it was error to issue a writ of assistance without providing both parties with proper notice and an opportunity to be heard.
II. FACTS AND PROCEEDINGS
A. Custody And Visitation
Kenneth Osterkamp and Kattaryna Stiles met in the spring of 2002 and became romantically involved shortly thereafter. They began living together, first in Kattaryna's apartment and then in a condominium they purchased together in 2003. They bought a home together in late 2004 where they lived until separating in March 2007. Ken and Kattaryna never married, but they considered themselves to be domestic partners.
In 2004 Ken and Kattaryna became foster parents together, successively serving as foster parents to several infants. On September 1, 2005, the Office of Children's Services (OCS) placed Simon with Kattaryna and Ken. Simon was born on August 25, 2005 and is an Indian child under the Indian Child Welfare Act (ICWA).
Ken and Kattaryna began taking steps to adopt Simon in early 2006, even as they began to experience difficulties in their relationship. They dispute whether they decided to adopt Simon as a couple, although a home study for joint adoption was conducted in spring 2006. Kattaryna claims she always planned to adopt Simon on her own but a social worker advised putting Ken's name on the home study in case they later decided to adopt together. Ken claims that the plan was always for joint adoption and he only agreed to remove his name from the adoption petition after Kattaryna insisted that they wait and see if their relationship improved before including his name. Ken and Kattaryna agreed that if Ken ultimately did not adopt Simon, he would be like a " beloved uncle" and continue to have a role in Simon's life. Once it was decided that, at least initially, Kattaryna would adopt Simon by herself, a second adoption study was completed taking these changed circumstances into account. Both adoption studies recommended that the adoption proceed.
On December 28, 2006, the court held an adoption hearing and issued an adoption decree. Simon was sixteen months old and
had spent all but one week of his life living with Ken and Kattaryna. Ken attended the hearing and did not raise any objections or concerns over his name not appearing on the adoption decree. Nor did he request to reserve any post-adoption rights. After the adoption, Ken, Kattaryna, and Simon continued to live together as a family unit for three months.
Kattaryna separated from Ken in March 2007 after a heated argument, but she testified that she had been planning to leave for many months. The parties initially agreed Ken would have visitation with Simon but Kattaryna began limiting visitation to once every two or three weeks, with no overnights. Kattaryna also forbade Simon's social worker and daycare providers from referring to Ken as " dad" or " father," and forbade Ken from doing the same.
In April 2007, Ken filed a complaint for joint legal and physical custody. He claimed that as Simon's " psychological father" and as someone who had acted in loco parentis for Simon, he had a right to joint custody. Ken also sought an order compelling Kattaryna to consent to his joint adoption of Simon. The superior court ordered interim visitation while the complaint for custody was pending, but Kattaryna retained sole legal and primary physical custody. In response to a motion filed by Ken, the court appointed a custody investigator in June 2007.
In March 2008, eleven months after filing his initial complaint, Ken filed a motion in limine to determine his standing to seek custody or visitation. He asked the court to determine before trial whether he was a psychological parent to Simon. The court partially granted the motion in April 2008, allowing Ken to proceed to trial but deferring until trial the question of whether Ken was Simon's psychological parent.
The custody investigator filed a report in June 2008 explaining that " it is guesswork" to determine whether a person is a psychological parent to a toddler. But because Ken and Kattaryna were Simon's only caregivers during the first nineteen months of his life, the investigator concluded " one can be fairly certain" that Simon had " more or less" equal emotional attachments to each of them. Similarly, a psychological evaluation completed at the request of the custody investigator observed that Simon had positive interactions with both Ken and Kattaryna and that both Ken and Kattaryna demonstrated parental love and affection towards Simon.
Ken and Kattaryna experienced great difficulty cooperating with each other to implement the court's visitation schedule. Kattaryna repeatedly expressed to both the custody investigator and psychological evaluator that she no longer wanted Ken in Simon's life. This led to conflict, sometimes in front of Simon.
A bench trial was held in early July 2008. The court entered an oral ruling on August 22, 2008 awarding Kattaryna sole legal and physical custody of Simon. Although the superior court found Ken had established psychological parent status by the time of trial, the court ruled that the period from the adoption in December 2006 until the custody suit in April 2007 was the dispositive time period for purposes of assessing Simon's bond with Ken. The court concluded that Ken was not Simon's psychological parent as of the time the parties separated and Ken filed his complaint. The court also concluded that Ken had not shown by clear and convincing evidence that it would be clearly detrimental to Simon to remain in Kattaryna's custody. The court was silent on Ken's claim for visitation rights.
After the court read its oral ruling into the record, the court, at the suggestion of Kattaryna's attorney, discussed and issued a writ of assistance to Kattaryna to obtain physical custody of Simon. Because the court had failed to send notice to the parties informing them when the ruling would be read, Ken and his attorney were not present during the discussion or issuance of the writ of assistance; Kattaryna's attorney was present because she noticed the proceeding scheduled on CourtView.
In October 2008 Ken unsuccessfully requested visitation pending appeal. He has
had no contact with Simon since August 2008.
Ken appeals the superior court's denial of custody as well as its failure to determine if he met the substantive requirements for visitation. He also appeals its issuance of a writ of assistance without proper notice.
B. Property Issues
In 2004 Ken's parents gave Kattaryna and Ken $44,000 to finance the purchase of their home. Ken's parents issued " gift letters" of $22,000 each to Kattaryna and Ken. These letters purported to require no repayment. Nonetheless, Kattaryna made monthly payments to Ken's parents from October 2005 until February 2007, writing " home loan" on each check. Ken and his mother testified that the expectation was for both $22,000 payments to be paid back, but with no interest and without a deadline for repayment. Kattaryna argued the $22,000 payment was a gift and that her monthly payments were made out of moral obligation only.
In its August 2008 oral ruling, the court found that Ken's parents loaned $44,000 to the parties. The court credited Kattaryna $4,200 for payments she had made on her loan and ordered her to repay the remaining $17,800. After accounting for Kattaryna's loan payments, Ken's home improvements, and the amount owing on the mortgage, the court found Kattaryna's share of the home equity to be $50,132, and Ken's share to be $78,883.75. The court ordered that the parties ...