Duffus v. Duffus

932 P.2d 777, 1997 Alas. LEXIS 33, 1997 WL 85122
CourtAlaska Supreme Court
DecidedFebruary 28, 1997
DocketS-7583
StatusPublished
Cited by23 cases

This text of 932 P.2d 777 (Duffus v. Duffus) 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
Duffus v. Duffus, 932 P.2d 777, 1997 Alas. LEXIS 33, 1997 WL 85122 (Ala. 1997).

Opinions

OPINION

COMPTON, Chief Justice.

I. INTRODUCTION

Kenneth Duffus appeals the superior court’s denial of a motion to modify a child custody order. We affirm the. decision below and remand the case for amendment of the order’s provision regarding disclosure of crucial information to the children.

II. FACTS AND PROCEEDINGS

Kenneth and Juliann Duffus were married in 1978. They have two children, Elizabeth (Beth), born in 1983, and Michelle, born in 1987. Kenneth and Juliann were divorced in 1990. They agreed that Juliann would have sole legal and primary physical custody, while Kenneth would retain visitation rights.

In July 1994 Juliann’s job was eliminated. In October she accepted a job offer in Colorado and moved there the following month, taking the children with her. Since the move, Beth has expressed a desire to live in Alaska, while Michelle would rather spend the school year in Colorado and vacations in Alaska. However, the custody investigator testified that both children truly wish to maintain the status quo.

Following her move to Colorado, Juliann has canceled or shortened all of Kenneth’s visits. A visit planned for Thanksgiving 1994 was canceled by Juliann.1 As a result, Ju-liann was fined and ordered to return the children to Alaska by December 18 for a Christmas visit. Juliann did bring the children to Anchorage, but cut the visit from fifteen days to six days. In March 1995 Juliann sent Kenneth a letter stating she would not allow the children to visit him that summer unless he secured a court order for their return. Juliann eventually brought the children to Alaska for their visit, but she delayed that visit from June 15, as required by court order, to July 4. Throughout this period, Kenneth refused to discuss any visit arrangements with Juliann. Indeed, since the move the parties have demonstrated a near-total inability to communicate with each other in any meaningful way.

In the course of visitation disputes, Kenneth discovered that Doug Glynn, Juliann’s apparent paramour, had become involved in the children’s lives. Glynn was convicted of molesting several male children over a decade ago. He has shown unusually positive signs of reform by admitting his crimes, cooperating fully with treatment efforts, and seeking help on his own initiative whenever he fears a relapse. However; Glynn is not [779]*779“cured,” and Ms probation order proMbits him from being alone with any child.

Glynn is present in Juliann’s home every day after work until the family goes to bed. He answers the telephone and has received certified mail at Juliann’s home. He also has spent brief periods of time alone with the children. For instance, on several occasions, the children answered Juliann’s telephone and passed it to Glynn after stating that their mother was not home. Private investigators also observed Glynn and the children alone for several brief periods. Juliann has not told the children of Glynn’s past.

Following Juliann’s move and the visitation disputes, Kenneth moved to modify custody. The superior eourt denied the motion. TMs appeal followed.

III. DISCUSSION

A. Standard of Review.

“TMs eourt will overturn a lower court’s resolution of a custody issue2 only when there is an abuse of discretion or where there are clearly erroneous findings of fact.” Bird v. Starkey, 914 P.2d 1246, 1248 (Alaska 1996) (citations omitted) (when trial eourt made no findings whatsoever, case was remanded for “findings of fact wMch address all relevant criteria of AS 26.24.150(c)”). “We deem a factual finding to be clearly erroneous when we are left with a defimte and firm conviction on the entire record that a mistake has been made, even though there may be evidence to support the finding.” Brosnan v. Brosnan, 817 P.2d 478, 480 (Alaska 1991) (citation omitted). A trial eourt will be found to have abused its discretion if it “failed to consider statutorily-mandated factors, or improperly weighed certain factors in making its determination.” Bird, 914 P.2d at 1248 (citations omitted). Hence, a trial eourt is required to make findings on the various statutory factors which are sufficient to make the basis of its decision susceptible to review. Id.

Kenneth raises a number of discrete issues on appeal, many of which concern the trial court’s alleged failure to make findings addressing “all relevant criteria of AS 25.24.150(e).” However, Kenneth’s primary argument concerns the presence of Glynn- m the children’s lives, and the potential threat which Kenneth contends Glynn presents.3 None of Kenneth’s claims carry sufficient weight to compel reversal.

B. The Trial Court’s Findings Adequately Address All Relevant Statutory Criteria.

Under Bird, the trial court was required to make “findings of fact wMch address all relevant criteria of AS 25.24.150(e).” Bird, 914 P.2d at 1249. Alaska Statute 25.24.150(c)(6) directs the court to consider “the desire and ability of each parent to allow an open and loving frequent relationsMp between the child and the other parent.” See Pinneo v. Pinneo, 885 P.2d 1233 (Alaska 1992)(eustodial parent’s efforts to sever other parent’s relationsMp justified custody change). Kenneth argues that smce the court’s written order lacks an express finding on this factor, the court’s findings do not adequately address this issue.

TMs contention is contradicted by the record. While trial courts are encouraged to state all findings in their written orders, they are not required to do so as long as the basis for their decisions is clear from the record and thus susceptible to review. The court’s oral order included findings that “both parents’ conduct toward each other is outrageous ... Each of these parents fail in their commumcation with each other, commumcation which is absolutely necessary for their children’s well being ... Neither one of them [780]*780respect their children well enough ... to communicate with the children's other parent ... [and] the victims ... are the children.” The court determined that both parents were at fault for the visitation problems, and that the only way to resolve the matter was “to order in minute detail any and all visitation and communication that the other parent is permitted or allowed.” Moreover, the written order directly addressed this issue by providing detailed visitation guidelines. Taken together, the court’s oral findings, as effectuated by its written order, are adequate to address the statutory factor and clarify the basis for the court’s decision on this issue.

In addition, Kenneth notes that under AS 25.24.150(c)(3), the trial court was required to consider “the child’s preference if the child is of sufficient age and capacity to form a preference.” See Rooney v. Rooney, 914 P.2d 212, 217 (Alaska 1996) (statutory standard is meant to give weight to child’s wishes). Kenneth argues that the court failed to make the required finding.

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Duffus v. Duffus
932 P.2d 777 (Alaska Supreme Court, 1997)

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Bluebook (online)
932 P.2d 777, 1997 Alas. LEXIS 33, 1997 WL 85122, Counsel Stack Legal Research, https://law.counselstack.com/opinion/duffus-v-duffus-alaska-1997.