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Joy B. v. Everett B.

Supreme Court of Alaska

November 1, 2019

JOY B., Appellant,
v.
EVERETT B., Appellee.

          Appeal from the Superior Court of the State of Alaska No. 2KB-16-00047 CI, Second Judicial District, Kotzebue, Paul A. Roetman, Judge.

          Bonnie J. Coghlan, Downes, Tallerico, & Schwalm Law Firm, LLC, Fairbanks, for Appellant.

          Terri-Lynn Coleman, Law Office of Rita T. Allee, P.C., Fairbanks, for Appellee.

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

          OPINION

          MAASSEN, JUSTICE.

         I. INTRODUCTION

         A married couple with a ten-year-old son separated in 2014. Following an evidentiary hearing on temporary orders, the trial court found that the father had a history of perpetrating domestic violence and ordered him to complete an intervention program for batterers before he would be allowed unsupervised visitation with the child.

         At the later custody trial, the director of the intervention program testified that the father had sought entry to the program but had been determined to be unsuited for it because he was a victim of domestic violence rather than a perpetrator. The custody investigator's report confirmed these conclusions and recommended that the father be granted sole legal and primary physical custody of the child because of the mother's coercive influence and her inability to meet the child's mental and emotional needs.

         Relying primarily on the testimony of the batterers' program director and the custody investigator, the trial court concluded that the father had overcome the statutory presumption against awarding custody to a parent with a history of perpetrating domestic violence and followed the investigator's recommendation, granting the father sole legal and primary physical custody of the child. The mother, on appeal, challenges this decision, arguing that the evidence did not support a conclusion that the statutory presumption was overcome because the father never received any treatment or therapy.

         We conclude that the trial court could lawfully consider the expert testimony that the father was not suited for a batterers' intervention program when deciding whether the statutory presumption against awarding him custody was overcome. We also conclude that the court did not clearly err or abuse its discretion in its consideration of the child's best interests. We therefore affirm the trial court's custody decision.

         II. FACTS AND PROCEEDINGS

         A. Facts

         Joy B. and Everett B. were married in 1998.[1] Ten years later they became the parents of twins, one of whom died of Sudden Infant Death Syndrome at only 21 days old.

         The marriage was turbulent. Joy claimed that Everett was unfaithful and that he committed acts of domestic violence; she later came to blame Everett for the death of their child. Everett admitted to an affair but claimed that Joy abused him emotionally and physically, once even hiring an assassin to kill him. The parties separated in May 2014. Everett filed for divorce in December 2015, asking for shared legal and primary physical custody of their child. Joy asked for sole legal and primary physical custody.

         B. Proceedings

         In May 2016 the trial court held a hearing on temporary orders. The court found that "it was more likely than not that [Everett] has a history of perpetrating domestic violence," based on two occasions when Everett placed Joy in "reasonable fear of bodily harm": in one incident he destroyed a child gate in front of Joy and the child, but the other incident was not identified. The court held that under AS 25.24. 150(j), Everett could not have unsupervised visitation until he completed "an intervention program for batterers and a parenting education program." The court awarded Joy interim sole legal custody and primary physical custody and limited Everett to supervised visitation.

         Shortly thereafter Everett met with Lisa Hay, a licensed clinical social worker, who performed an intake assessment for a batterers' intervention program. Hay concluded that Everett was not a perpetrator of domestic violence but rather a victim, and that he was therefore "not appropriate for our program." The court also appointed a custody investigator, who filed a lengthy report based on her observations of the parents and her review of records such as the parents' text messages and psychological assessments. The investigator's conclusions mirrored those of Hay: Everett was "passive and avoidant," whereas Joy was "aggressive and domineering" and "engaged in long-standing patterns of battering through coercion, control, manipulation and domination over [Everett] physically and psychologically." The investigator found that these behaviors prompted concerns about the child's "current well-being and whether his needs are being met." She recommended that Everett have sole legal and primary physical custody of the child and that Joy have "supervised weekly Skype visits" and enroll in cognitive behavioral therapy.

         Trial was held over several days in early 2018. Joy and Everett both testified, along with Hay, the custody investigator, Joy's retained expert in custody investigations (who critiqued the custody investigator's report), Everett's current domestic partner, an acquaintance of Joy's, and a psychologist who had evaluated Everett's mental state on the custody investigator's referral. The court memorialized its decision in a summary order that largely accepted the custody investigator's recommendations, awarding Everett sole legal and primary physical custody and giving Joy supervised visits while ordering her to enroll in cognitive behavioral therapy.

         The court more fully explained its decision in a later final custody order. The court declined to change its interim finding that Everett had perpetrated domestic violence; however, it found that "[Everett's] breaking the baby gate was 'situational violence' and not pattern violence" and that Joy, on the other hand, was a "perpetrator of domestic violence" through "intimate partner stalking behaviors" and "ongoing harassment behaviors" designed to give her "coercive control" over both Everett and the child. The court found by a preponderance of the evidence that Everett had "overcome the rebuttable presumption that previously prohibited a custody award to him," based on the facts that "[Everett] was not recommended for [the] DV batterers['] program," "he does not engage in substance abuse," and "the best interests of the child require his participation as a custodial parent."

         Joy appeals. She challenges the court's decision that Everett overcame the statutory presumption against awarding him custody, its decision that awarding custody to Everett was in the child's best interests, and its decision to condition her unsupervised visitation on the substantial completion of mental health treatment.

         III. STANDARD OF REVIEW

         The trial court has broad discretion in child custody matters, and its decision "will be set aside only if the entire record demonstrates that the controlling findings of fact are clearly erroneous or that the trial court abused its discretion."[2] "A finding of fact is clearly erroneous when this court is left with a definite and firm conviction that the trial court has made a mistake."[3] "Abuse of discretion is established if the trial court considered improper factors in making its custody determination, failed to consider statutorily mandated factors, or assigned disproportionate weight to particular factors while ignoring others."[4]

         "Whether the [trial] court applied the correct standard in a custody determination is a question of law we review de novo, determining the rule of law in light of precedent, reason, and policy."[5] We review de novo whether a superior court's findings satisfy statutory requirements."[6]

         IV. DISCUSSION

         A. The Trial Court Did Not Clearly Err By Finding That Everett Rebutted The Statutory Presumption Against Awarding Him Custody.

         Alaska Statute 25.24.150(g) imposes "a rebuttable presumption that a parent who has a history of perpetrating domestic violence against the other parent, a child, or a domestic living partner may not be awarded sole legal custody, sole physical custody, joint legal custody, or joint physical custody of a child." Subsection (h) of the statute provides that "[t]he presumption may be overcome" if three conditions are met: (1) "the perpetrating parent has successfully completed an intervention program for batterers, where reasonably available"; (2) "the parent does not engage in substance abuse"; and (3) "the best interests of the child require that parent's participation as a custodial parent because the other parent is absent, suffers from a diagnosed mental illness that affects parenting abilities, or engages in substance abuse that affects parenting abilities, or because of other circumstances that affect the best interests of the child." These three conditions for overcoming the presumption must be proven by a preponderance of the evidence.[7]

         1. The trial court did not err by relying on evidence that Everett had applied for entry to a batterers' program but was found unsuited for it.

         Following the custody trial the court reaffirmed its earlier determination that Everett had a history of perpetrating domestic violence; this kept in place the statutory presumption against awarding him custody. The custody investigator had recommended that the court apply the statutory analysis governing situations in which both parents have histories of perpetrating domestic violence; in such circumstances the court should award custody "to the parent who is less likely to continue to perpetrate the violence and require that the custodial parent complete a treatment program," or, if necessary, award custody "to a suitable third person."[8] But the court declined to find, "at this time, that [Joy] has a history of perpetrating domestic violence." Instead, the court found that Everett had met the three conditions necessary for overcoming the statutory presumption. The court reasoned that (1) "[Everett] was not recommended for [a domestic violence] batterers['] program," (2) "he does not engage in substance abuse," and (3) "the best interests of the child require his participation as a custodial parent."

         Joy argues that the court's finding on the first element - that Everett had not been recommended for a batterers' program-failed to satisfy the element's express requirement: successful completion of "an intervention program for batterers, where reasonably available."[9] She notes that when deciding interim custody, the court had "ordered [Everett] to complete a batterers'] program and a parenting education program" before he could have unsupervised visitation, but "[h]e did neither." The question we must decide is whether the court could lawfully conclude that Everett satisfied the presumption's first condition with evidence that he asked to be admitted to a batterers' program but, having been examined by an expert as part of the intake process, "was not recommended for" the program because he posed no risk of committing domestic violence in the future.

         In Stephanie F. v. George C. we held "that the rebuttable presumption in AS 25.24.150(g) may be overcome by means other than the completion of an intervention program for batterers."[10] We reached this conclusion after close analysis of the statutory language and legislative history: the statute says that the presumption "may be overcome by completing an intervention program for batterers, "[11] and the legislature omitted potentially limiting language such as "shall be overcome only," as used in the Louisiana statute on which Alaska's was based.[12] In Stephanie F., much like here, the husband's therapist testified that "traditional batterers' intervention group sessions would be 'contraindicated' in [the husband's] case and 'could be more detrimental than productive.' "[13] The husband had, however, completed "twelve weeks of one-on-one therapy," during which "he made significant progress to 'understand and change his behavior[]' and improve his empathy skills," though the superior court found that this counseling "was not ...


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