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Weathers v. Weathers

Supreme Court of Alaska

August 10, 2018


          Appeal from the Superior Court No. 3KN-13-00897 CI of the State of Alaska, Third Judicial District, Kenai, Carl Bauman, Judge.

          Kevin D. Koch, Soldotna, for Appellant.

          Kara A. Nyquist, Anchorage, for Appellee.

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


          STOWERS, Chief Justice.


         A mother appeals the superior court's custody modification order awarding the father physical custody of their daughter 59% of the year. Previously, pursuant to the parties' divorce settlement agreement, the mother had been awarded primary physical custody in large part because the father's employment required him to work overseas most of the year. After the father was retired by his employer due to a downturn in the oil market, he unilaterally took custody and refused to allow the mother to have custody of their daughter except for very limited visitation. The mother moved to modify custody to a 50/50 basis. We conclude that the superior court's custody award was an abuse of discretion because it gave disproportionate weight to grandparent involvement as a factor favoring the father while failing to weigh against the father the statutory best interests factor regarding the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent. We reverse the custody award and remand to the superior court.


         A. Facts

         Dennis and Rowena Weathers married in July 2007, when Dennis was 44 and Rowena was 20. The couple had a daughter, Sally, in April 2008.[1] Dennis had worked on the North Slope in the oil industry for around 20 years, but began to work in Africa and other overseas locations later in his career. From birth through first grade Sally was in Rowena's primary care; Dennis was working overseas for most of those years. He came home to Kenai only occasionally, for somewhere between ten days and two months per year. Rowena kept photographs of Dennis for their daughter and would coach her on who her father was. The child's paternal grandparents lived nearby and had contact with the child.

         The parties divorced pursuant to a settlement agreement in April 2014. The parties agreed that Rowena would "have primary physical custody of [Sally]" and that Dennis would "have custody of [Sally] in Alaska during his weeks off from work overseas." Dennis came back from Africa in June 2015 after being directed by his employer, Schlumberger, to take vacation days following a downturn in the oil market. He told Rowena he had been asked to take vacation days because he had so many vacation days accrued. He assumed primary physical custody of his daughter during his time off. He and Sally lived in the family home, and Rowena moved into a single family residence with her fiance in the same general area where Dennis and the paternal grandparents lived.

         For the first two months Dennis was back home, he allowed Rowena very limited visitation with their daughter; they met at a McDonald's for lunch, they went to the park for an hour, and Sally attended a lake party with her mother. Dennis eventually allowed weekend overnights starting in September. But he did not want to give Rowena too many overnights and lose the 50% reduction in child support the settlement agreement gave him "during periods of visitation that exceed[ed] 27 days."

         Rowena asked Dennis in August 2015 when he was going back to work. He said he did not know and that it might be October 4. He received a termination letter on September 18, 2015, effective the same day, but did not inform Rowena. He later testified that his company was still trying to find a place for him before the termination paperwork was finished; that between September and December 2015, he was still hoping to be employed in his company's Gulf of Mexico or United Kingdom projects; and that if his company could not find a place for him by the time he got his first retirement check on December 1, he would then be terminated permanently.

         In early October Rowena again asked Dennis when he was going back to work. Despite his termination letter from his employer, he answered that he was not sure and again failed to advise Rowena that he had already received the termination letter. In response to Rowena's further questioning about his departure date, he told her to stop asking him. In early December, when he got his first retirement check, he called Rowena and told her he had been effectively retired the month before-November. At trial, he described himself as retired or "semi-retired." Rowena approached Dennis about changing the custody arrangement and asked for more time with Sally. Dennis responded that if she wanted more than the weekends he was "giving her" she would have to file a motion with the court.

         B. Proceedings

         Rowena filed a motion to modify custody in January 2016 seeking a 50/50 shared physical custody arrangement. Dennis opposed the motion, interpreting the settlement agreement as giving him primary custody when he returned to Alaska and arguing his retirement did not constitute a substantial change in circumstances. In April 2016 the court issued an order concluding that Dennis's interpretation of the settlement agreement was "not in sync with the common meaning of the phrase 'weeks off from work overseas, '" finding that Dennis's retirement was a material change of circumstances sufficient to justify a new custody determination, and setting an evidentiary hearing. The court held an interim hearing after which it ordered a 70/30 shared custody schedule during the school year favoring Dennis and a 50/50 schedule during the summer. The court held a full custody hearing on January 10, 2017. Rowena testified and presented testimony from her fiance and Dennis's sister-in-law. Dennis testified and presented testimony from his father.

         The superior court's findings on custody addressed each of the statutory best interests factors under AS 25.24.150(c).[2] With respect to factor one on the child's needs, the court found that Sally had the needs of a normal eight year old, but had spent little time living with both her parents at the same time . With respect to factor two on the capability and desire of each parent to meet the child's needs, the court found that both parents had demonstrated the capability and desire to care for Sally on a regular, consistent basis; Rowena from birth through first grade, and Dennis in the year he had full custody of Sally after returning from overseas. Additionally, the court found that as a semi-retired person, Dennis had ample time to care for Sally, and that Rowena could arrange her classes and homework to allow for ample time as well.

         Under factor three on the child's preference, the court found that Sally was too young to express a preference for either parent, but cautioned the parties that Sally appeared to be learning how to manipulate them by telling each what they wanted to hear. Under factor four on the love and affection existing between the child and each parent, the court found that both parents loved Sally and she loved them. The court found under factor five on the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity, that both the family home in which Sally had spent her infancy and the single family residence where Rowena and her fiance lived provided stable and satisfactory living arrangements.

         With respect to factor six on the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child, the court noted that, "from [Rowena's] perspective, the father resisted her efforts to spend more time with [their daughter] after he returned and began exercising primary custody." The court then noted that Dennis questioned Rowena's temperament around their daughter, her ability to help Sally with homework, and suggested there were heated arguments between Rowena and Sally. And the court noted that Rowena raised concerns about Dennis leaving their daughter home alone. The court then concluded that factor six was neutral.

         With respect to factor seven, the court found that no domestic violence was alleged by either parent, noted that witnesses had described an instance of Sally throwing a tantrum while with her mother, and noted that Sally appeared to mind her father but did not always feel obligated to mind her mother. The court found no evidence of substance abuse under factor eight.

         The court discussed the role of extended family in its analysis as "another factor that the court consider[ed] pertinent" under the catch-all provision of AS 25.24.150(c)(9):

The paternal grandparents live nearby and have maintained a significant role in the life of this child. They have six grandchildren, and enjoy having those grandchildren at their home, playing. The grandparents are likely to welcome [their grandaughter] whether she is in the custody of her mother or her father, but [she] is likely to have more opportunities to be with these grandparents while she is in her father's custody.

         The court concluded that the best interests factors were "generally even between the parents," but that "[t]he significant value to [Sally] of regular contact with her paternal grandparents tip[ped] the scales in favor of the father." The court ordered that Dennis and Rowena share summers on a 50/50 basis, but gave Dennis more time during the school year - two out of every three weeks less one overnight during the weekend between his two weeks. With holidays taken into account, this amounted to a 59/41 split in Dennis's favor with respect to total overnights.

         Rowena filed a motion for reconsideration, objecting to the court's reliance on grandparent involvement in its decision. She argued that because she had no notice of the issue of grandparent involvement she had been denied due process; that no evidence supported that grandparent involvement was in the child's best interests; that it was speculation to conclude that awarding more time to Dennis would increase the level of grandparent involvement; that given the opportunity, she could have presented evidence contradicting this conclusion; and that no evidence suggested Dennis needed more than 50% custody to achieve grandparent involvement in Sally's life at a level that would be in her best interests. Rowena also argued that the court's evaluation of statutory best interests factor six - on the willingness and ability of each parent to facilitate a relationship between the other parent and the child[3] - misconceived her concern that Dennis intentionally misled her about his not going back to work long after he knew he had been terminated. She asserted that the court made no specific findings on the evidence presented and instead discussed concerns unrelated to factor six.

         The court denied the motion for reconsideration. The court reasoned that the role of extended family, including grandparents, may be considered under Barrett v. Alguire, which held that factor five can include consideration of the child's "community of friends and family."[4] The court also found that Dennis's witness list, the fact that both parties discussed the paternal grandparents in their testimony, and Rowena's ability to cross-examine the grandfather afforded Rowena due process on the issue. In addition, the court decided that even though the custody factors were "generally even," the dispute turned on "subtle differences in the custodial factors brought out by the parties," such as the child's ability to live in the home she grew up in when with her father, Dennis's less contentious and argumentative interactions with the child when helping with school work, and Dennis's ability to devote full attention to his daughter because of his retirement. Rowena appeals.


         "Whether there was a violation of [a parent's] right to due process is a question of law" that we review de novo.[5]

         "The superior court has 'broad discretion in its determination of child custody.' "[6] "We will not set aside the superior court's child custody determination 'unless its factual findings are clearly erroneous or unless it abused its discretion.' "[7]"We will find the trial court's underlying factual findings clearly erroneous only '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] "We will find that the trial court abused its discretion if it has ...

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