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Misyura v. Misyura

Supreme Court of Alaska

November 19, 2010

Sergey MISYURA, Appellant,
v.
Lyudmila MISYURA, Appellee.

Page 1038

Thomas R. Wickwire, Law Office of Thomas Wickwire, Fairbanks, for Appellant.

Dorothy E. Heim, Alaska Legal Services Corporation, Fairbanks, for Appellee.

Before: FABE, WINFREE, CHRISTEN, and STOWERS, Justices.

OPINION

CHRISTEN, Justice.

I. INTRODUCTION

Both parties to this action sought custody of their three children during their divorce proceeding. The trial court found the father had a history of domestic violence and awarded the mother sole physical and legal custody pursuant to AS 25.24.150(g). The father appeals, arguing: (1) he did not have a history of domestic violence sufficient to trigger the presumption against awarding him custody under AS 25.24.150(g); (2) there was no basis for denying him overnight visits; and (3) the trial court erred by delegating to the mother the discretion to place conditions on the father's visitation. We affirm the custody decision; but because it was error for the trial court to delegate the authority to require the non-custodial parent to attend an intervention program for batterers, we reverse and remand the visitation order. We do not reach the question of overnight visitation.

II. FACTS AND PROCEEDINGS

Sergey and Lyudmila were married in Belarus in 1994. They have three children: Karina, David, and Jessica, now approximately ages fifteen, nine, and four. Both parties were residents of Alaska residing in Fairbanks at the time of trial.

The parties separated in November 2007 when Sergey moved into a house he had been building for the family. Initially, all three children lived with Lyudmila, but in February 2008 David went to live with Sergey.

Sergey filed a motion for temporary custody and appointment of a custody investigator on May 27, 2008. Lyudmila never received notice of the motion and did not attend the July 17, 2008 hearing. The court granted Sergey's unopposed motion and entered an order for temporary custody awarding him sole custody of the three children. The children were removed from Lyudmila's custody and placed in Sergey's custody on or about July 25, 2008. The children lived with Sergey until September 2008 when the court issued an interim child custody order awarding temporary custody of the three children to Lyudmila " with liberal visitation with Sergey."

Meanwhile, Lyudmila sought a domestic violence protective order. A magistrate held hearings on August 25, 2008 and October 2, 2008. Lyudmila testified about an incident where Sergey passed her car in a narrow no-passing zone and nearly forced her off of the road. The magistrate also heard testimony about an incident on the night of Lyudmila's birthday when Sergey saw her enter her apartment with another man and approached her window. On the basis of this testimony, the magistrate found by a preponderance of the evidence that Sergey had committed criminal trespass and reckless endangerment. The magistrate issued a long term protective order after the contested hearing. Sergey did not appeal that order.

The divorce and custody trial was conducted in May 2009. During the trial, Lyudmila testified about the domestic violence she had experienced throughout the marriage. She testified about an incident where Sergey choked her nearly to unconsciousness, another when he pushed her and she fell on the floor ...


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