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Solomon v. Solomon

Supreme Court of Alaska

June 8, 2018


          Appeal from the Superior Court of the State of Alaska, No. 3 AN-15-04521 CI Third Judicial District, Anchorage, Gregory Miller, Judge.

          John C. Pharr, Law Offices of John C. Pharr, Anchorage, for Appellant.

          Notice of nonparticipation filed by David S. Houston, Houston & Houston, Anchorage, for Appellee.

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


          BOLGER, JUSTICE.


         The superior court issued a decree divorcing Terrace L. Solomon and Wendy D. Barnes (formerly Solomon) and reserving custody of the parties' children to be decided at a later trial. Before the custody trial could be held, Terrace was arrested and held in a United States Army prison outside Alaska. The superior court repeatedly continued the custody trial to allow Terrace's counsel to get in contact with Terrace and arrange for his telephonic appearance at trial. But after about a year had passed, the court refused to further continue the matter. A short custody trial was held; Terrace was absent but represented by counsel. The court awarded sole legal custody and sole physical custody to Wendy. The court determined, among other things, that Terrace had a history of perpetrating domestic violence, triggering a presumption against awarding him custody.[1]

         On appeal Terrace claims the superior court abused its discretion when it refused to further continue the custody trial. Terrace also claims the court erred in concluding he had a history of domestic violence. He contends that the record was inadequate to support this conclusion and that the court did not make the requisite findings to support it. We agree the superior court's domestic violence findings are insufficient and thus vacate the court's determination concerning the domestic violence presumption. We otherwise affirm the superior court's judgment.


         A. Background

         Terrace and Wendy married in 1999 and had four children during the marriage. They separated in December 2014, and Wendy has had custody of the children since that time. In January 2015 Wendy filed for divorce.

         The superior court bifurcated the divorce proceeding. It held a one-day trial on property and child support[2] issues on October 15, 2015, and the following day it issued an order resolving these issues and decreeing the parties divorced. The court scheduled a half-day trial on child custody and a related domestic violence petition for January 14, 2016.

         B. Terrace's Arrest And The Continuance Of The Custody Trial

         The custody trial was not held as planned on January 14, 2016, because Terrace - then a soldier in the United States Army - was arrested and imprisoned by military authorities in late October 2015. The superior court vacated the trial date and instead held a trial setting conference on January 28.

         Atthe January 28 conference, Terrace's attorney represented that he did not know anything about Terrace's status except that Terrace was "in custody." Wendy's attorney had more information. He said that Terrace was being kept in a military prison outside Alaska and that Terrace's criminal defense attorney was "working on a potential deal that w[ould] leave him incarcerated for approximately three years." With the consent of both parties, the superior court continued the trial setting conference to March 23.

         When the parties returned on March 23, Terrace's attorney explained that he had "tried to find out how long [Terrace was] going to be incarcerated" but that he had not been successful: "[N]obody knows because he's still pretrial." When asked by the court how he would like to proceed, he replied, "I guess I would like to just see if we could kick the can down the road some more ... till we see how things shake out down there." With the consent of Wendy's attorney, the court again continued the matter.

         Additional trial setting conferences were held on July 20, August 24, and September 7. At each of these conferences, Terrace's attorney indicated that he had not been in contact with Terrace. He stated, however, that he had spoken with Terrace's mother and had tried to reach Terrace's fiancee. Moreover, at the August 24 conference, he said he had learned that Terrace had been convicted in a court-martial and sentenced to 12 years' imprisonment. The superior court advised Terrace's attorney at each of these conferences that he needed to find out from Terrace how he wanted to proceed with the case. The court moreover expressed concern about "needless[]" hearings and the resulting attorneys' fees.

         A final trial setting conference was held on September 28. Terrace's attorney indicated at that time that he had been in contact with Terrace, who was imprisoned at Fort Leavenworth, Kansas. Terrace's attorney requested that the court schedule a trial on custody "sometime in the next couple of months." Wendy's attorney agreed, and the court set a pretrial conference for November 2 and a trial for November 18.

         At the November 2 pretrial conference, Terrace's attorney stated that he "finally [had] a half-decent pipeline to talk to" Terrace and that he had spoken with Terrace again since the September 28 hearing. He explained, though, that his phone conversations with Terrace had to be approved 72 hours in advance by the authorities at Fort Leavenworth.

         The superior court suggested that the court and the parties plan to "go forward" with the November 18 trial regardless of whether Terrace would be able to participate. Terrace's and Wendy's attorneys both consented to this plan. Terrace's attorney "warn[ed] the court, " however, that Terrace was "talking about wanting to delay the trial date." The court responded that it would not further continue the trial "[a]bsent good cause." In particular, the court explained: "The fact that the phone contacts back to [Fort] Leavenworth... don't go through for whatever reason, I likely won't consider that good cause. These are all things for you to iron out between now and then, but the case needs to go forward."

         C. The Custody Trial

         Terrace did not appear at the November 18, 2016 custody trial. His attorney said that the officials at Fort Leavenworth had "refused" to allow him to appear telephonically.[3] The attorney explained:

[I]t turns out to be a really big deal to get... an inmate on the phone. You have to give them a three days heads up . .. [.] I mean we've been after this for weeks but then finally earlier in the week ... the Specialist I've been dealing with in the commandjudge advocate's office in the disciplinary barracks said that he'd see what he could do quote unquote for Friday[, November 18]. Then yesterday he came back and unequivocally said we don't do Fridays. But we do Monday through Thursdays.

         Terrace's attorney requested "a delay until [Terrace] can be on the phone which evidently is a Monday through Thursday."

         Wendy's attorney noted that since January 2016 the court had repeatedly continued the case "because of [Terrace's] situation" and that the court had been "real clear about where things stood" at the November 2 hearing. He recommended the court "move forward" with the trial.

         The superior court agreed with Wendy's attorney and denied the request to further continue the trial:

[For] quite some time now this case . . . has been sort of kick[ed] down the road[, ] always trying to accommodate [Terrace's] court-martial issues and timing and then . . . issues with getting him on the phone from Leavenworth[.] [A]nd at the last pre-trial conference November 2, ... we address[ed] this and said the case would go forward today absent good cause and I'm not finding [there] to be good cause[.] [L]et me explain why. The situation doesn't sound like it's going to get much better. . . . [Terrace] certainly is entitled to appear telephonically but [Wendy] is entitled to have her case tried. [A]nd if there are ... procedural issues with . . . Leavenworth, I have zero proof in front of me[:] letters, [a] motion to continue, letters or emails to and from Leavenworth as to efforts made or problems there. ... [S]o I'm finding it not to be good cause so we will go forward.

         In response to the court's ruling, Terrace's attorney stated: "[W]e don't have any email communication [with Fort Leavenworth]. We kept getting bounced around from one office to the other" The court replied: "My concern is what... [was] not presented to me by way of what was done to get your client on the line . . . ." ...

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