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John E. v. Andrea E.

Supreme Court of Alaska

July 19, 2019

JOHN E. and SALLY E., a Minor, Appellants,
v.
ANDREA E., Appellee.

          Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Nos. 3 AN-10-06201 CI and3AN-17-01833CI, William F. Morse, Judge.

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

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

          OPINION

          BOLGER, CHIEF JUSTICE.

         I. INTRODUCTION

         A divorced mother had sole legal and physical custody of her two daughters. Their father sought a protective order against the mother and a modification of custody after she repeatedly hit the older daughter with a belt. The superior court found that the mother's actions did not trigger the presumption against custody under AS 25.24.150(g). It ordered that she retain legal and physical custody, subject only to a limited protective order, and that the father have restricted visitation. The father appeals.

         We conclude that it was an abuse of discretion for the superior court to exclude the testimony of a psychologist who diagnosed the child with PTSD. We thus vacate the custody decision and remand for a new analysis of the children's best interests in light of the psychologist's testimony.

         II. FACTS AND PROCEEDINGS

         A. Background

         John and Andrea E. married in 2004.[1] They have two daughters: one born in 2004, and one born in 2007. John and Andrea divorced in 2011 and shared legal and physical custody of their children. That arrangement was largely unchanged until 2015, when the superior court granted primary physical custody and sole legal custody of the children to Andrea and allowed John only supervised visitation. The court made this modification after finding that John had assaulted Andrea at least three times, triggering a rebuttable presumption that he not be awarded "sole legal custody, sole physical custody, joint legal custody, or joint physical custody of a child."[2] The court noted that John could overcome this domestic violence presumption by completing a domestic violence program approved by the Department of Corrections, which he did in late 2016.

         B. Andrea's 2017 Assault Of Her Daughter

         On June 30, 2017, Andrea punished her older daughter, who was then twelve, by hitting her repeatedly with a belt. Andrea and the child gave different accounts of the incident at trial.

         1. Andrea's account

         According to Andrea, her daughter had been constantly misbehaving leading up to the June 30 incident, and had "been sneaking out of the house for the past year." Andrea said she had unsuccessfully tried to control this behavior without corporal punishment, but eventually warned her daughter that if she continued to sneak out she would "get spanked."

         Andrea said that on June 30 she saw a Snapchat video showing her daughter walking down a busy street with friends "at three o'clock in the morning," and a second video showing her smoking. Andrea then confronted her daughter and demanded the passcode for her phone. When the child refused, Andrea decided to "spank" or "whip[]" her with a belt. Andrea claims that she then grabbed her daughter, turned her around, and started whipping her rear end with a plain leather belt. She said that soon after she started, her daughter gave her the passcode to her phone.

         Andrea said that she then stopped hitting her daughter and began to review the contents of her cell phone, where she saw sexual content, including sexual communications. Andrea asked for the friend's phone number and was refused; angered by this, she then grabbed the belt and began hitting her daughter again. Andrea said that she was hitting her daughter's legs, but that the child grabbed the belt and tried to kick her. Andrea said that while wrestling with her over the belt, she accidentally hit her daughter in the face, giving her a bloody nose. Andrea said that her fiance then restrained the child, the fight ended, and she told her daughter to take a shower to clean up. According to Andrea, the whole incident took place within a 30-minute period.

         2. The child's account

         The child's account differed from Andrea's in several ways. She agreed that the incident began when Andrea saw videos of her "hanging out [with a friend] early in the morning." She said that Andrea told her to sit on a "game chair" and "started hitting [her] with [a] belt." The child testified that instead of being plain leather, the belt was studded with "metal stars." She also said that Andrea hit her "a few times ... in the face" in addition to her legs and arms. She said that when she tried to shield her face with her hands, Andrea pushed her hands aside, and that Andrea's fiance assisted throughout much of the incident by restraining her while Andrea continued the beating. She also testified that Andrea put her hands around her neck. The child said that at some point Andrea "threw [a cup of juice] all over" her, then told her to take a shower. The child stated that Andrea continued beating her while spraying her with the shower handset.

         C. Proceedings Following The Assault

         The morning after the assault, the child left the house again without Andrea's permission; she was picked up by John's wife, Kimberly, and resided with John and Kimberly until the end of the proceedings at issue in this appeal.

         John took the child to the hospital the morning after the assault, and he obtained an ex parte domestic violence protective order on behalf of both his daughters. Andrea moved to dissolve the order, and on July 5, 2017, a magistrate judge granted her motion with respect to the younger daughter, but not the older one. That same day John filed a motion to modify custody, requesting sole legal and primary physical custody of both children.

         The superior court held a status hearing on September 21 for both the domestic violence case and the motion to modify custody. Among other things, the parties argued over the fact that John had taken their older daughter to see a psychologist despite the fact that Andrea retained sole legal custody over her. The court scheduled an evidentiary hearing for October 4 and 5.

         Various witnesses testified at the evidentiary hearing, including Andrea and the older daughter, who each described their version of the assault, [summarized above in Part II.B] Andrea also sought to justify the incident, explaining that her mother had practiced even harsher forms of punishment when she was a child. Noting that other punishments had failed to correct her daughter's behavior, Andrea explained that she did not regret her decision and would make the same one again if confronted with the same circumstances. The older daughter testified at the hearing that she did not want to return to live with Andrea, and that she still had some marks from the assault that had not yet gone away.

         John introduced photographs of the child's injuries after the assault and testified that a doctor performed a CAT scan of her nose because it appeared to be broken, but that the test showed it was not. Another witness who saw the child right after the assault testified that her injuries appeared minor at the time, and were not as serious as those in John's photographs.

         John also sought to call as a witness the psychologist who had seen his daughter. Andrea objected and the court ruled that it would not allow the psychologist to testify. The court seemed to conclude that John lacked the authority to bring his daughter to the psychologist, because Andrea had sole legal custody, and that he had done so for litigation purposes rather than to secure emergency treatment. In its final custody order, the court explained that it "declined to permit John to take advantage of overstepping his legal and medical authority when he took [his daughter] to a counselor a day before the [September 21] hearing."

         At the end of testimony on October 5, the court dissolved the existing ex parte domestic violence order to the extent that it prohibited contact between Andrea and her older daughter, and scheduled supervised visitation between them. On October 13 John filed an expedited motion to suspend this visitation until a therapist had approved its "time, place and manner," arguing that the child was not ready to see Andrea and that "[r]elations between mother and daughter cannot be normalized without therapeutic intervention." The court decided that this motion was moot when it delivered its oral ruling on custody three days later, and denied it in its final custody order.

         On October 16 the court held a hearing to decide John's request for a long-term domestic violence protective order and his motion to modify custody. John argued that Andrea's assault of their older daughter resulted in "serious physical injury" because it produced "protracted impairment of health," and so triggered the rebuttable presumption that she should not have custody.[3] He also argued that the assault constituted two or three distinct incidents of domestic violence because Andrea interrupted the beating to look at her daughter's phone and - in the child's account - to tell her to get in the shower. Andrea argued that her use of violence against the child was excusable as reasonable discipline.[4]

         D. The Superior Court's Rulings On The Long-Term Domestic Violence Order And Motion To Modify Custody

         The superior court delivered an oral ruling at the close of the hearings, and later issued written orders. It issued a long-term domestic violence protective order with only one provision: that Andrea "not threaten to commit or commit acts of domestic violence, stalking, or harassment."

         In its custody order the court made the following findings about Andrea's assault of her daughter: that "Andrea hit [the child] with her hands and then several times with the belt on the legs and arms" after she refused to give Andrea the passcode to her cell phone; that once she obtained access to the phone, Andrea "resumed hitting [the child] with the belt"; that the child suffered "facial bruising," but that it was unclear whether this was caused by intentional or accidental contact; and that the younger daughter "was in the same room during most of the confrontation between Andrea and [her sister]."

         The court rejected Andrea's argument that her assault was reasonable corporal punishment. But it likewise rejected John's argument that the assault constituted two distinct incidents of domestic violence or that it resulted in "serious physical injury" to the child. The court explained that "the various acts of violence were all part of one excessive disciplinary episode" and that they did not "create a substantial risk of [the child's] death" or cause her to "suffer protracted disfigurement or impairment of health," as was required to find a single incident of domestic violence serious enough to trigger the presumption.[5] The court thus declined to apply the domestic violence presumption in AS 25.24.150(g). It explained that Andrea's single incident of domestic violence was instead "to be considered when weighing the best interest factors of AS 25.24.150(c)." The court found the assault "troubling," but concluded that Andrea's violence "had a more understandable origin than [did] John's repeated behaviors" - presumably referring to John's multiple assaults of Andrea and other disruptive behavior since their divorce.

         The court found that Andrea's assault on her older daughter "damaged their relationship at a time when it needed to be strong and trusting," but that John was also causing harm to the child by "manipulating [his] relationship [with her] to get revenge on Andrea." The court ultimately concluded that "Andrea is more able to meet each child's daily emotional and medical needs."

         The court found it significant that the "children ha[d] been living with Andrea for a greater period of time in the past two years" than they had with John. The court noted the older daughter "expressed a fear of returning to Andrea's home." But it did not view her expressions of fear as "mature, thought out expressions of a preference to live with one parent rather than the other" but instead "as evidence of her need for help relating with her mother."

         The court awarded Andrea sole legal and primary physical custody of the children, and ordered that John have unsupervised visitation with the children for four hours every week. The court recognized that the older daughter "need[ed] time and assistance to restore her relationship with Andrea" and that Andrea needed to develop more appropriate strategies for dealing with her misbehavior. Accordingly the court ordered that Andrea should arrange for counseling for the child and engage in anger ...


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