Schaeffer-Mathis v. Mathis

         Appeal from the Superior Court of the State of Alaska, Third Judicial District, Palmer, Vanessa White, Judge. Superior Court No. 3PA-11-02658 CI

          Appearances: J. Stefan Otterson, Otterson Law Office, Anchorage, for Appellant.

          Darryl L. Jones, Law Office of Darryl L. Jones, Palmer, for Appellee.

          Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices.

          OPINION

          STOWERS, CHIEF JUSTICE.

         I. INTRODUCTION

         After nearly ten years of marriage and the birth of two children, a couple separated in 2012. Three years of contentious litigation followed, during which time the father had interim sole legal custody of the children, and the physical custody arrangements were modified multiple times. In 2015 the superior court issued the divorce decree and made findings regarding child custody and property distribution. The mother appeals, raising eight issues. We reverse and remand the superior court's decision regarding the mother's student loans and, if necessary, for a recalculation of the equitable distribution of the marital estate. We affirm the superior court's decision in all other respects.

         II. FACTS & PROCEEDINGS

         A. Facts

         Jacqualine Schaeffer^[1] and Linus Mathis married in April 2002, separated in March 2012, and divorced in April 2015. Two children were born of the marriage, one in September 2002 and the other in June 2004. Schaeffer began working part-time toward the end of the marriage, after having been a stay-at-home mother, and she studied interior design online. She moved out of the marital home in October 2011 and filed for divorce the following month. She then moved back into the marital home, and she and Mathis sought marriage counseling. They ultimately separated on March 19, 2012, when Schaeffer allegedly hit Mathis in the head in front of their children, after which he called the police and she was arrested and charged with assault.

         B. Proceedings

         1. Interim motions and proceedings

         In November 2011 Schaeffer filed for divorce and requested joint legal and shared physical custody of the children. She used a form provided by the court system and did not check the form's box for indicating that she had safety concerns for herself or the children. In March 2012 Mathis filed a petition for a domestic violence protective order, and he filed a response to Schaeffer's complaint and asserted a counterclaim requesting sole legal and primary physical custody of the children because of "a history of domestic violence in this marriage with [Schaeffer] being the abuser." Schaeffer filed a reply denying that she had committed domestic violence and alleging that Mathis was "the primary perpetrator of domestic violence in the marriage and parenting relationships." She requested sole legal and primary physical custody.

         In April 2012 a hearing on the domestic violence and interim custody issues was held before Superior Court Judge Kari Kristiansen, who found that Mathis testified credibly and that he proved by a preponderance of the evidence that Schaeffer had committed multiple acts of domestic violence against him. The court issued a long-term protective order because the protective order in connection with Schaeffer's pending criminal assault case was not protecting Mathis from contact with Schaeffer. The court ordered Schaeffer to "enroll in a program for the rehabilitation of perpetrators of domestic violence, and a substance abuse treatment program." The court awarded Mathis interim sole legal and primary physical custody and granted Schaeffer visitation.

         Schaeffer moved for reconsideration, which was denied; she was also ordered to pay child support. In July 2012 the superior court ordered a custody investigation.

         In October Schaeffer filed a motion to modify interim custody based on three alleged substantial changes in circumstances. She alleged that Mathis had been abusive toward her and the children and had regularly failed to meet the children's needs since the entry of the interim custody order, that she had transitioned to full-time employment and her new schedule conflicted with the visitation arrangement, and that she had "complied with and completed her court-ordered anger management and alcohol counseling program requirements." She requested sole legal and primary physical custody of the children or, in the alternative, a shared week-on/week-off custody schedule.

         The day after filing that motion, Schaeffer filed domestic violence petitions on behalf of the children. She also appears to have filed a report with the Alaska State Troopers alleging Mathis caused injury to one of the children, and she filed a report with the Office of Children's Services (OCS). In an October 2012 affidavit Mathis described a State Trooper incident that is consistent with the superior court's later finding that Schaeffer encouraged one of the children "to make false allegations to law enforcement that his father grabbed him by the shoulder leaving a bruise." Regarding the OCS report, Mathis related in the affidavit that a caseworker was sent to the children's school and that the investigation was closed because the caseworker found nothing wrong with the children.

         Mathis responded to Schaeffer's motion to modify interim custody, denying the allegations against him but recognizing that Schaeffer "should have expanded visitation to account for her job."

         The superior court issued an order modifying interim custody in December 2012. The court noted that both Schaeffer and Mathis had made serious allegations against each other without providing much evidence. The court indicated that Schaeffer had "made some progress toward meeting the assessment and treatment goals" but that she had not demonstrated that she had complied with the requirements. The court granted Mathis continued interim sole legal custody of the children. It set a week-on/week-off interim physical custody schedule to take effect upon Schaeffer providing her substance abuse assessment and two clean urinalysis test results.

         The custody investigation ordered in July and was completed in January 2013. The court custody investigator expressed concern that the children may have been coached by Schaeffer because of statements they made to him as well as information from OCS that the older child had reported being coached. Based in part on the concerns about coaching, the custody investigator recommended that Mathis be given sole legal custody. The custody investigator recommended a week-on/week-off physical custody schedule.

         In October Mathis moved to modify the interim custody order, which by then had changed to a week-on/week-off schedule; he also moved for a partial no-contact order. The superior court granted the partial no-contact order and reduced Schaeffer's time with the children to three weekends each month.

         In April 2014 Schaeffer filed a motion for updates to the custody investigation and modification of interim custody. In light of the children's experiences over the 19 months since the children were interviewed and their alleged increased maturity and ability to express themselves, she requested "a re-interview of the boys and the parents and anyone else that the investigator . . . believes is relevant to any new information the boys may provide." Her attorney filed a supporting affidavit indicating that the attorney had contacted the custody investigator; she reported that the investigator said that it was "not unreasonable to update their interviews" and that completing an update a couple of weeks before trial would be possible if a court order were issued as soon as possible. According to Schaeffer's attorney the investigator "believe[d] that it would also be necessary to re-interview the parents and any others that may be relevant to any new information the children may provide." Mathis opposed the motion, expressing "concern[] about the ongoing attempts to manipulate the children and [the] fact that [Schaeffer's] proposal appears to be a full custody investigation."

         The superior court denied Schaeffer's motion to modify interim custody and to update the custody investigation, finding that Schaeffer had "not established a factual basis ... for subjecting the boys to another [custody investigator] interview."

         2. The divorce trial

         The divorce trial was held before Superior Court Judge Vanessa White in August and September 2014. The superior court heard testimony from a number of witnesses, including Schaeffer, Mathis, and the custody investigator. In April 2015 the court entered the decree of divorce and issued Findings of Fact and Conclusions of Law.

         The court distributed the marital estate, awarding the marital home to Mathis and dividing retirement assets and debts. The court cited testimony by Schaeffer regarding student loan debt she incurred during the marriage, but it declined to recognize that debt as marital debt based on (1) lack of documentation, (2) its finding that Mathis credibly testified that he had been told the loans were federally subsidized and did not need to be repaid, and (3) Schaeffer's failure to show that she had completed the course of study the loans were taken out for. The court found that there was no dispute regarding the distribution of personal property and that Schaeffer and Mathis had accomplished that distribution themselves. Because it found that Schaeffer and Mathis both were in good health and had roughly equivalent earning capacities, the court distributed the marital estate equally and required Mathis to make a balancing payment to Schaeffer. Mathis was permitted to deduct child support arrears Schaeffer owed him from that balancing payment.

         Regarding child custody, the court addressed Schaeffer's allegations that Mathis was physically and emotionally abusive to Schaeffer and the children and found her allegations not credible. The court found "by a preponderance of the evidence that [Mathis] was the victim of physical violence by [Schaeffer] on the date of the parties' separation." Because the court found that only one act of domestic violence was proved and because that incident did not result in serious injury to Mathis, the court determined that the domestic violence presumption in AS 25.24.150(g) did not apply.^[2]

         The court found that both parents were capable of meeting the children's needs but that Mathis was more motivated to focus on the children's needs. The main reason for this determination was the finding that Schaeffer "encouraged the children on more than one occasion to lie to various authorities (law enforcement, counselors) about [their] father's conduct." The court also expressed concern about Schaeffer having "coached the children in an effort to justify her alcohol consumption." And it noted that Schaeffer chose to take personal vacations instead of spending her custodial time with the children twice during the separation prior to trial and had allowed her work commitments to sometimes interfere with her parenting responsibilities for several days.

         The court found that Mathis had indicated his willingness to maintain the family home and therefore could provide the children with stability of place. The court expressed some concern that Schaeffer "minimized the problems that alcohol ha[d] caused in her relationships" and that she had consumed alcohol while parenting in the past but gave that factor little weight because of Schaeffer's testimony that she was no longer using alcohol. The court found that Schaeffer's false allegations of domestic violence and decision to involve the children in making such false allegations "suggested] that she [was] less willing than [Mathis] to foster an open, loving and frequent relationship between the boys and their other parent." The court also found that communication between Schaeffer and Mathis regarding the children was "poor to nonexistent."

         Based on these findings, the court awarded Mathis sole legal and shared physical custody. Schaeffer appeals, raising eight issues relating to child custody, child support, property distribution, and interim attorney's fees.

         III. ...