Chavre v. Chavre

598 P.2d 81, 1979 Alas. LEXIS 535

• Court: Alaska Supreme Court
• Decided: August 3, 1979
• Docket: No. 3349
• Status: Published

Opinions

OPINION

MATTHEWS, Justice.

In this child custody divorce proceeding we have reviewed the trial court’s findings of fact and find the following findings to be clearly erroneous:

Finding XII, that Mrs. Chavre’s adulterous relationship caused emotional and physical detriment to the children.

Finding XIII, that Mrs. Chavre has a problem controlling her drinking and that it interferes with her responsibilities toward the children.

Finding XV, that Mrs. Chavre is an unfit parent. The evidence cited to support these findings is both too limited in scope and trivial in effect to overcome the contrary evidence that during the entire lives of the children, except for a short period immediately preceding the divorce, Mrs. Chavre has provided for the day-to-day needs of the children, usually without assistance from Mr. Chavre, and has discharged her duties as a parent with appropriate competence and affection.

Finding XXI, that it is in the best interest of the children that they be placed in the custody of Mr. Chavre is based in part on the foregoing erroneous findings. It therefore must be vacated.

We remand for a determination as to which parent should be granted custody. In reaching this disposition we do not express any view as to what the ultimate outcome should be, only that it should not be based on findings for which there is insufficient evidentiary support. If the trial court finds the existing record inadequate it may reopen the testimony and, in its discretion, it may appoint a guardian ad litem for the children pursuant to AS 09.-65.130. Finally, we recommend to the trial court that in making its ultimate finding it specifically advert to the factors listed as relevant in AS 09.55.205.¹

VACATED AND REMANDED.

BURKE, J., not participating.

BOOCHEVER, J., dissenting.

1 . AS 09.55.205 provides:

Judgments for custody. In an action for divorce or for legal separation the court may, if it has jurisdiction under AS 25.30.020, and is an appropriate forum under AS 25.30.050 and 25.-30.060, during the pendency of the action, or at the final hearing or at any time thereafter during the minority of any child of the marriage, may, modify or vacate an order for the custody of or visitation with the minor child which may seem necessary or proper. Any appointment of a guardian ad litem for a child shall be made under the terms of AS 09.65.130. The court shall determine custody in accordance with the best interests of the child. Neither parent is entitled to preference as a matter of right in awarding custody of the child. In determining the best interests of the child the court shall consider all relevant factors including:

(1) the physical, emotional, mental, religious and social needs of the child;

(2) the capability and desire of each parent to meet these needs;

(3) the child’s preference;

(4) the love and affection existing between the child and each parent;

(5) the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;

(6) the desire and ability of each parent to allow an open and loving frequent relationship between the child and his other parent.