Chesser-Witmer v. Chesser

117 P.3d 711, 2005 Alas. LEXIS 104, 2005 WL 1654103
CourtAlaska Supreme Court
DecidedJuly 15, 2005
DocketS-11512
StatusPublished
Cited by1 cases

This text of 117 P.3d 711 (Chesser-Witmer v. Chesser) is published on Counsel Stack Legal Research, covering Alaska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Chesser-Witmer v. Chesser, 117 P.3d 711, 2005 Alas. LEXIS 104, 2005 WL 1654103 (Ala. 2005).

Opinion

117 P.3d 711 (2005)

Laurie K. CHESSER-WITMER, Appellant,
v.
Michael A. CHESSER, Appellee.

No. S-11512.

Supreme Court of Alaska.

July 15, 2005.

*712 Gloria Hanssen Hooper, Law Office of Rita T. Allee, P.C., Fairbanks, for Appellant.

Michael A. Chesser, pro se, Fort Drum, New York.

Before: BRYNER, Chief Justice, MATTHEWS, EASTAUGH, FABE, and CARPENETI, Justices.

OPINION

CARPENETI, Justice.

I. INTRODUCTION

A custody order gave ex-spouses joint legal and shared physical custody over their young daughter. Two years later, upon learning that the Army was transferring him to New York, the father moved to modify custody, seeking physical custody of the child during the school year. The superior court granted the modification. The mother appeals, arguing that the superior court erred in its factual findings and abused its discretion in granting the modification. Because the superior court's factual findings are supported by substantial evidence and are not clearly erroneous, and because the trial court did not abuse its discretion in making the custody determination, we affirm.

II. FACTS AND PROCEEDINGS

Michael and Laurie Chesser[1] married on December 24, 1997 in Tennessee. Michael has been in the Army since 1991. During the marriage, Michael was stationed at Ft. Wainwright, near Fairbanks. Their only child, Bryanna, was born on September 16, 1998. Michael and Laurie separated on January 9, 2001, and two days later Laurie filed *713 a complaint for divorce. Both parents requested primary physical custody of Bryanna.

After a two-day trial, Superior Court Judge Richard D. Savell issued a Decree of Divorce and Findings of Fact and Conclusions of Law on December 12, 2001. With regard to child custody, the order concluded that it was in Bryanna's best interest to give the parents joint legal custody and shared physical custody. It set forth a detailed schedule, as follows:

A. Mr. Chesser shall exercise physical custody from Friday evening until Sunday evening and from Wednesday evening until Thursday morning. Ms. Chesser shall exercise physical custody from Sunday evening until Wednesday evening and from Thursday morning until Friday evening.
B. [I]n addition . . . Mr. Chesser will exercise a three-overnight weekend one time a month. . . .
C. The times for exchanges . . . shall be set by agreement of the parties.
D. Both parties will be entitled to take a two-week vacation with the minor child outside the Fairbanks area. . . .

Though Laurie was not denoted as the primary custodian in the order or elsewhere, this schedule gave Laurie slightly more physical custody than Michael. The court ordered this arrangement in part because it anticipated that Michael would be unavailable for up to seventy-five days per year due to military deployment. The order also provided that "if either parent needs child care for a period of two hours or longer, the other parent must be given the opportunity to care for the child if that parent is available."[2]

About one year after entry of this order, Michael moved for modification of the custody schedule. Because his position in the Army had changed to "Permanent Rear Detachment" — a position with apparently no risk of deployment—Michael requested an exactly equal share of physical custody. His calculation asked for an additional fourteen to fifteen days per year.[3] On March 3, 2003 Judge Savell denied Michael's motion.

In January 2004 Michael learned that the Army planned to transfer him to Fort Drum, New York the following summer. Wanting to take Bryanna with him and have custody during the school year, Michael again filed for modification. He proposed that Laurie have custody during summers and holidays. Michael sought modification based on his impending transfer and based on Laurie's alleged violations of the existing court order and parenting behavior alleged to negatively affect Bryanna's welfare. He attached a list of these violations, and later supplemented the list. He alleged that Laurie frequently left Bryanna in a third party's care for two or more hours without first contacting Michael, and that Bryanna was often not available for telephone contact during their agreed-upon times. He also claimed that Bryanna's personal hygiene and health suffered while she was with Laurie, that her school performance was substandard, including numerous tardy arrivals, and that she was harmed by other conduct of Laurie.

Laurie opposed the motion, arguing that Michael's complaints were exaggerated or unfounded and that Michael's own conduct had been less than ideal. She pointed out that, since the divorce, Michael had moved seven times, had numerous girlfriends, drank excessively, and had been convicted of driving while intoxicated.

Trial on Michael's motion to modify custody was held in May 2004. Testimony at trial supported the pretrial allegations of both parties: principally, that Laurie had violated the existing court order regarding Bryanna's contacts with her father, and that Michael had problems with alcohol and had experienced instability in his living arrangements. The trial also showed the following.

*714 Laurie runs an assisted-living facility for the elderly out of her home. The assisted living home comprised the top floor of the house, while the family (including Laurie, her husband, her step-son, and Bryanna) occupied the lower floor. The business normally housed between two and four patients, with a staff of two employees. Laurie regularly used one of the business's employees to babysit Bryanna. On one occasion, an elderly patient "napped" in Bryanna's bed for about forty-five minutes. Laurie testified that the living situation was good for Bryanna because it allowed Laurie to work mostly at home.

Two of Michael's ex-girlfriends testified regarding his drinking habits and occasional argumentative/aggressive behavior. In addition, Laurie's husband testified that Michael had referred to Laurie in a derogatory manner. However, there was no clear testimony that such behavior occurred while Michael was in Bryanna's presence. Michael conceded that his living situation had been unstable, but suggested that his situation had improved — he was in a serious committed relationship that included discussion of marriage. Michael and his girlfriend both testified about their strong connection with Bryanna.

There was extensive testimony that communication between Laurie and Michael had broken down. Michael testified that he felt like Laurie was more likely to give additional visitation when their relations were going well, and less likely to do so when they were not. Michael testified that, by his calculations, there were seventy-two violations of the custody provision regarding babysitting, and forty-four occasions when Bryanna was not available to talk on the telephone.[4] He also complained that Laurie failed to inform him about Bryanna's school performance, or involve him in the decisions to enroll Bryanna in the Sylvan Learning Center and in private therapy.

There was no expert testimony presented at the trial. Bryanna's therapist testified that the primary source of Bryanna's unhappiness was the conflict between her parents. However, she noted that Bryanna was generally fine and enjoyed a "very, very strong relationship" with both parents and stepparents. She also testified that:

If [Bryanna] stayed with her mother, she was going to be devastated by dad moving and being so far away.

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117 P.3d 711, 2005 Alas. LEXIS 104, 2005 WL 1654103, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chesser-witmer-v-chesser-alaska-2005.