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Pingree v. Cossette

Supreme Court of Alaska

July 27, 2018

BETH PINGREE, Appellant,

          Appeal from the Superior Court No. 3KO-15-00276 CI of the State of Alaska, Third Judicial District, Kodiak, Pat L. Douglass and William F. Morse, Judges.

          MelvinM. Stephens, II, Kodiak, for Appellant.

          Jill C. Wittenbrader, Law Office of Jill Wittenbrader, LLC, Kodiak, for Appellee.

          Before: Stowers, Chief Justice, Winfree, Maassen, and Carney, Justices. [Bolger, Justice, not participating.]


          WINFREE, Justice.


         A couple had a daughter together and then separated while she was still very young. The parents lived in different towns and alternated physical custody of the daughter. After they were unable to agree on a permanent arrangement for shared custody, the mother filed a complaint for primary physical custody and the father counterclaimed for the same. Both parents wanted primary physical custody during the school year; the father, a commercial fisherman, was unavailable for two to three summer months each year. The superior court found that equal custody time was appropriate but impossible given the separate domicile locations, and also that minimal custodial time with the father would be harmful to the daughter. The court therefore awarded primary physical custody to the father, so long as the parents continue to live in separate locations. The mother appeals. Seeing no reversible error in the court's evidentiary decisions, factual findings, or discretionary decisions, we affirm the superior court's custody decree.


         Beth Pingree and Andre Cossette lived together in Kodiak; in August 2013 Beth gave birth to their daughter. Their daughter lived with Beth and Andre in the Kodiak home or at the Pingree family lodge near Uganik. Beth was with their daughter most of the time, and Andre was with the two of them when not commercial fishing.

         Beth and Andre separated in February 2015, when Beth ended the relationship and permanently moved to Uganik, taking their daughter with her. Andre remained in contact with their daughter when Beth traveled to Kodiak and when he visited Uganik. In October Beth and their daughter visited Andre in Kodiak to discuss a custody plan, but discussions broke down and Beth and their daughter returned to Uganik. Beth then emailed Andre, telling him that she would not return to Kodiak with their daughter, that he was not welcome in Uganik, and that she did not want him to contact her. Andre responded through counsel by proposing a week-on, week-off custody plan, to which Beth eventually agreed.

         In November Beth filed a custody complaint, requesting primary physical custody and joint legal custody. Andre answered and counterclaimed for primary physical custody. The superior court held an interim custody hearing in mid-February 2016 and found that the statutory best interests factors were either inapplicable, weighed equally for both parents, or weighed equally against both parents. The court concluded that equal time with both parents was in their daughter's best interests and ordered the week-on, week-off schedule to continue.

         The court appointed a custody investigator to assess the case. The week-on, week-off schedule continued during the investigation until August, when Beth moved to Soldotna to pursue Emergency Medical Technician (EMT) training. Andre then moved for custody modification, arguing that weekly travel from Kodiak to Soldotna was prohibitively expensive. The court found the move was a substantial change in circumstances and modified the interim custody arrangement to a month-on, month-off schedule to reduce transitions. Beth later moved to Homer, working as a volunteer firefighter/EMT with the goal of permanent employment at the local fire station. The move to Homer did not affect the month-on, month-off schedule.

         The case was reassigned to another superior court judge in February 2017, who presided over a two-day hearing on March 15 and May 2. Beth and Andre agreed on joint legal custody, but each sought primary physical custody; both parents wanted physical custody during the school year.

         Beth testified about background information and discussed her life in Homer. Beth also testified that their daughter's first years had been primarily lived with Beth and that she had tried to facilitate their daughter's relationship with Andre. Beth and her supporting witnesses testified about the daughter's emotional distress at leaving Beth and the daughter's changed behavior while with Andre. They reported that she regressed in potty-training, wet herself repeatedly, could no longer sleep without milk, refused to let Beth leave her sight, became remote and brooding, and had repeated nightmares. Beth reported one especially troubling incident when their daughter returned from Kodiak and made several statements suggesting sexual abuse. Beth took their daughter to have medical exams twice, but neither exam could be completed because the daughter refused to let a practitioner examine her below the waist. An Office of Children's Services (OCS) social worker who worked with the family to respond to the incident testified that OCS investigated, but, after concluding that it was being drawn into a custody battle, it closed the case. A retired judge from Minnesota who regularly visited the Pingree lodge testified that the daughter was exhibiting extreme behavior, and he opined that Beth should receive primary custody.

         Beth also sought to introduce into evidence four questionnaires submitted by her witnesses to the custody investigator. Andre objected that the questionnaires "contain[ed] a lot of hearsay statements" and the superior court excluded all four.

         Andre testified about his own view of the background information and described his caring for their daughter as a baby and pre-separation. He also testified about their daughter's life in Kodiak, the enrichment activities he provided her, and how he had not noticed any behavioral distress while she was with him. Andre testified that he fished or worked various jobs throughout the year but that he was guaranteed to be salmon fishing in Bristol Bay every June and July. Andre's friends and family supported his testimony that the daughter was happy and thriving when with him, as did Sun'aq tribal workers who provided him parenting classes. A pilot who facilitated some of the transitions between Uganik and Kodiak testified that he did not notice anything unusual at transitions like the distress Beth was reporting.

         Throughout the hearing there was evidence that Beth used corporal punishment on the daughter by switching her with an alder twig. The superior court made three comments suggesting its disapproval of the practice, including that it would order Beth to stop the switching because it was close to a criminal act. But the court apparently did not issue such an order.

         The superior court entered a custody order in June, awarding joint legal custody and primary physical custody to Andre. The custody order began with a case synopsis and fact summary. The court summarized each party's evidence, the daughter's behavioral issues, and the issue of potential sexual abuse. The court attributed the daughter's behavioral difficulties to the on-off transitions, finding that her behavior subsided after the change to a month-on, month-off schedule, and it did not make any findings about sexual abuse. The court also noted, without further analysis, that Beth used a switch and that she did not think it was inappropriate. The court then found that none of the witnesses were lying and that all of the testimony "was basically true." But the court also found the retired judge was unnecessarily "eager[] to express his opinion," and it disregarded his testimony. The custody order did not refer to the custody investigation report or custody investigator's testimony in any way.

         The custody order then set forth the court's analysis. The custody order contained a general analysis of the daughter's best interests roughly corresponding to the statutory best interests factors.[1] The court found that: the daughter had the usual needs of a three-year-old child and her only special needs were caused by her parents living apart; both parents were capable, could care for their daughter, and did care for her; the daughter was too young to have a parental preference; both parents loved their daughter and their daughter loved them; the daughter spent most of her young life with Beth but the daughter's life with Andre was "impress[ive]," and she should continue having "as close to equal time with each parent" as possible; Beth was resistant to letting Andre play an equal role in their daughter's life; there was no evidence of domestic violence; and there was no evidence of substance abuse.

         The court found that having equal time with each parent would not be possible unless the parents lived in the same community. The court then found that giving Beth primary physical custody would be harmful to the daughter because she would only see Andre for four weeks a year, as he would be fishing during his summer custody. The court therefore gave Andre primary physical custody beginning when school started, with Beth having summer visitation, contingent on the parents continuing to live in different towns.

         Beth appeals.


         Superior courts are vested with "broad discretion" in making child custody decisions.[2] "We will reverse a trial court's resolution of custody issues only if . . . convinced that the record shows an abuse of discretion or if controlling factual findings are clearly erroneous."[3] The superior court abuses its discretion when it assigns too much weight to some factors while ignoring others, [4] fails to consider statutorily mandated factors, [5] elevates the parents' interests above the child's, [6] or considers impermissible factors.[7] A fact finding is clearly erroneous when our "review of the entire record leaves us 'with a definite and firm conviction that a mistake has been made.' "[8] "The trial court's factual findings enjoy particular deference when they are based 'primarily on oral testimony, because the trial court, not this court, judges the credibility of witnesses and weighs conflicting evidence.' "[9] Clearly erroneous fact findings are reversible error when they are "controlling," but not if they are immaterial.[10] The superior court's evidentiary decisions are reviewed for abuse of discretion.[11]


         Beth argues that the superior court erred in evidentiary decisions, factual findings, and the ultimate custody decision. We address each of her arguments in turn.

         A. The Custody Order Is Not Legally Flawed By Erroneous Consideration Of The Evidence.

         Beth argues that the final custody order is "flawed by an inappropriately selective consideration and discussion of the evidence." She contends the superior court erred by: (1) failing to discuss the custody investigation report; (2) excluding four questionnaires that informed the custody investigator's report; and (3) disregarding the retired judge's testimony. We see no error.

         First, Beth argues that "the trial judge... should not be permitted to ignore the custody investigator's input without comment," or, alternatively, that failing to do so was an abuse of discretion "on the facts of this case." But we addressed and rejected identical arguments in Chase v. Chase.[12] In that case a parent argued that the superior court abused its discretion because it "simply ignored the custody investigator's report without explaining why the court chose to disregard the report."[13] We rejected that argument, holding that "the trial court is not obligated to adopt a custody investigator's recommendations" and "is under no obligation to make specific findings regarding the report as long as the court considers the appropriate statutory factors."[14]

         To the extent Beth wants a per se rule that a court must at least discuss a custody investigator's report when it disagrees with the custody investigator, that rule was considered and rejected in Chase.[15] To the extent Beth is arguing only that it was an abuse of discretion not to discuss the custody investigator's report in this case, this case is indistinguishable from Chase.[16] We therefore hold that the superior court did not abuse its discretion by failing to discuss the custody investigator's report.

         Second, Beth argues that the superior court should not have excluded each questionnaire in its entirety simply because it contained hearsay statements and that the questionnaires themselves (which obviously are hearsay[17]) are admissible under the rule of completeness, Alaska Evidence Rule 106, to complete the custody investigation.[18] We find Beth's rule-of-completeness argument unpersuasive.[19] Rule 106 provides: "When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it." The questionnaires are not admissible under this Rule. Rule 106 was adopted to prevent a party from creating a "misleading impression ... by taking matters out of context."[20]

         Beth's argument that the questionnaires were admissible as "source material" for the custody investigator does not fit within the scenario Rule 106 was designed to prevent; Beth points to no misleading impression that stemmed from considering only the custody investigator's report.

         Beth's "source material" argument strongly resembles an argument for disclosure under Alaska Evidence Rule 705. Custody investigators, as a type of expert, do not have to rely only on admissible evidence in forming their opinion, and evidence they rely on may be disclosed during the investigator's testimony.[21] But even if this Rule could have been the evidentiary basis for Beth's proffer of the questionnaires, the record shows that Beth offered each witness's questionnaire while that witness was on the stand to bolster that witness's testimony, rather than to explain the custody investigator's testimony. The superior court did not abuse its discretion by excluding the questionnaires on a hearsay basis.

         Third, Beth argues that the retired judge's testimony was no different from the other witnesses and that a retired judge serving as a fact witness should not be subjected to heightened credibility standards. But the issue here is not heightened credibility; the superior court simply weighed the judge's testimony as it would that of any other witness, and it found that the judge's "eagerness to express his opinion undercut[] the neutrality of his reported observations." "[T]he trial court, not this court, judges the credibility of witnesses."[22] The superior court reasonably discounted the judge's testimony based on his unnecessary attempts to bolster his opinion and the court's firsthand view of all the evidence.

         We therefore find no reversible error in the superior court's consideration of the evidence.

         B. Controlling Factual Findings Are Not Clearly Erroneous.

         Beth next argues that the superior court made five clearly erroneous factual findings to support its decision. Because controlling factual findings are supported by the record, we see no reversible error.

         1. The superior court's finding that it asked Beth if Andre had behaved inappropriately is clearly erroneous but immaterial.

         Beth first argues that the superior court clearly erred when it noted: "At the hearing the [c]ourt asked [Beth] if she suspected [Andre] had done something unacceptable. She said no." Beth argues that, because this interaction never occurred, we must be wary of all of the superior court's findings. Beth also intimates that she may have said something different if actually asked this question.

         Beth appears to be correct that the superior court clearly erred by making this finding. We have not been able to find, nor has Andre pointed us toward, any record evidence that this interaction occurred. The superior court likely was referring to the following question between Beth and her counsel:

Q: In regards to the OCS incident, you heard testimony today that indicated there was some sort of an accusation or implication that Andre was the perpetrator - and I hate - that word just doesn't seem right - but was the perpetrator. Did you ever accuse Andre of doing this?
A: No.
Q: And was it your intent to convey that he had done something?
A: No.

         Even if clear error, this was not a "controlling factual finding" and therefore not reversible error.[23] Beth's counsel's question was substantially similar to the court's memory, and Beth has not argued here that Andre committed an act of domestic violence or child abuse that requires a different ...

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