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Co v. Matson

Supreme Court of Alaska

November 29, 2013

Kevin CO, Appellant,
Kelly MATSON, Appellee.

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[Copyrighted Material Omitted]

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Rhonda F. Butterfield, Anchorage, for Appellant.

Michelle S. Nesbett, Nesbett & Nesbett, Anchorage, for Appellee.

Before: FABE, Chief Justice, WINFREE, STOWERS, MAASSEN, and BOLGER, Justices.


FABE, Chief Justice.


In a divorce proceeding between Kevin Co and Kelly Matson, the superior court awarded Matson sole legal custody and primary physical custody of the couple's two minor children. Co challenges the legal and physical custody awards as well as the visitation schedule. Because we conclude that the superior court engaged in a comprehensive review of the statutory best-interests factors, made clear and thoughtful findings of fact, and did not abuse its discretion, we affirm the superior court's custody decision in all respects.


Kevin Co and Kelly Matson live in Homer and have two children, Spencer and Marina. Spencer is seven years old; Marina is five. Co and Matson were married in 2007 and separated in 2009. In September 2009 Co filed for divorce.

In a motion for interim custody, Co sought joint legal and physical custody of both children. Matson opposed the motion and sought primary physical custody of the children.

In a hearing before Superior Court Judge Charles T. Huguelet, the parties agreed on an interim custody arrangement, under which they were to share joint legal custody of both children. Under the agreement, Matson was to assume primary physical custody of Marina, and Matson and Co were to share physical custody of Spencer. The custody arrangement called for a gradual increase in the time the children would spend with Co, eventually leading to an even division of custodial time between the parents. In addition to the parties' agreed upon custody arrangement, the superior court ordered both parents not to use marijuana while the children were in their custody.

A few months later, Matson filed an emergency motion to modify custody. In her supporting affidavit, Matson claimed that Spencer was becoming violent, that Co was becoming unpredictable and verbally abusive, and that their lawyers had to be called in to resolve an incident in which Marina was sick and the parents could not determine who should take her to the doctor. Matson concluded that cooperative co-parenting had become impossible. Judge Huguelet declined to modify the original interim custody arrangement but scheduled another hearing for the end of the month. At that second hearing, Judge Huguelet again declined to alter the custody arrangement, but he did halt the gradual increase in Co's custody time with the children.

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Pro tem Superior Court Judge Peter G. Ashman conducted the divorce trial. As of the date of trial, Co had custody of Spencer for three overnights each week and of Marina for one overnight each week. At trial, Matson sought sole legal and primary physical custody of the children. Co sought joint legal and physical custody of the children, with delayed implementation of the equal custody schedule for Marina.

In his written findings of fact and conclusions of law, Judge Ashman concluded that while both parents possessed " considerable talent and ability," the inability of the parents to communicate necessitated an award of sole legal custody to one parent. Both parents agreed at trial that communication and agreement on important issues, such as medical care, was not possible. In awarding sole legal custody to Matson, Judge Ashman concluded that Matson " demonstrated a more mature parenting approach" and would be " more likely to foster a strong relationship between the children and the other parent than Mr. Co would be able to do if the situation were reversed." Judge Ashman also found that Matson should be awarded primary physical custody due to " the young age of the children and the need for stability as they approach school age."

Judge Ashman specifically considered all of the statutory best-interests factors and found that a majority of the nine factors favored Matson. He found that the other factors favored neither Co nor Matson. Accordingly, Judge Ashman awarded Matson sole legal custody and primary physical custody of the children and Co visitation with both children on three weekends a month. Co was also to have visitation with Spencer on all Wednesday evenings and with Marina two Wednesday evenings a month. The order also provided vacation and summer visitation schedules. Co now appeals the superior court's custody determination.


" We will not ‘ reverse a trial court's resolution of custody issues unless, after a review of the entire record,’ we are ‘ convinced that the trial court abused its discretion or that its controlling factual findings are clearly erroneous.’ " [1] An abuse of discretion will be found if the trial court " considered improper factors, or improperly weighted certain factors in making its determination." [2] Clear error will be found only when a review of the entire record leaves us with " a definite and firm conviction ... that a mistake has been made." [3] Particular deference is given to the " trial court's factual findings when they are based primarily on oral testimony, because the trial court, not this court, performs the function of judging the credibility of witnesses and weighing conflicting evidence." [4]


In his appeal Co challenges the superior court's decisions on both legal and physical custody. Physical and legal custody are two distinct concepts that must be analyzed separately.[5] " ‘ Legal custody’ refers to the responsibility for making ‘ major decisions affecting the child's welfare’ and is a status that may be held by a parent who does not have ‘ physical custody,’ which refers to the responsibility for physical care and immediate supervision of the child." [6]

In a divorce proceeding both legal and physical custody are analyzed using the best-interests factors found in AS 25.24.150(c).[7] Those factors are:

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(1) the physical, emotional, mental, religious, and social needs of the child;
(2) the capability and desire of each parent to meet these needs;
(3) the child's preference if the child is of sufficient age and capacity to ...

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