TERRACE L. SOLOMON, Appellant,
WENDY D. SOLOMON, n/k/a WENDY D. BARNES, Appellee.
from the Superior Court of the State of Alaska, No. 3
AN-15-04521 CI Third Judicial District, Anchorage, Gregory
C. Pharr, Law Offices of John C. Pharr, Anchorage, for
of nonparticipation filed by David S. Houston, Houston &
Houston, Anchorage, for Appellee.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and
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.
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.
FACTS AND PROCEEDINGS
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.
superior court bifurcated the divorce proceeding. It held a
one-day trial on property and child support 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.
Terrace's Arrest And The Continuance Of The Custody
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.
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.
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
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.
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.
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.
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
The Custody Trial
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. 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.
attorney requested "a delay until [Terrace] can be on
the phone which evidently is a Monday through Thursday."
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.
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.
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 . . . ."