Holl v. Holl

815 P.2d 379, 1991 Alas. LEXIS 87, 1991 WL 155895
CourtAlaska Supreme Court
DecidedAugust 16, 1991
DocketS-3109, S-3178
StatusPublished
Cited by10 cases

This text of 815 P.2d 379 (Holl v. Holl) 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
Holl v. Holl, 815 P.2d 379, 1991 Alas. LEXIS 87, 1991 WL 155895 (Ala. 1991).

Opinions

OPINION

PER CURIAM.

Roger and Constance Holl were married in 1976. They had three children prior to their divorce in 1986. The issue of custody was bifurcated from divorce and property issues, and tried separately. The custody trial lasted four days, taking place over a nine month period. The trial court found [380]*380that “joint custody is not appropriate in this case” and further that “[i]t is in the best interests of the minor children that they be placed in the custody of [Constance], not contingent upon whether she moves [from the Kenai-Soldotna area] or any other factor.” Reasonable rights of visitation were found to be appropriate, and a decree was entered accordingly. The trial court denied Roger’s motion for reconsideration, but expanded upon its prior findings with respect to factors it considered significant to its custody determination. Roger appealed.

We affirmed the trial court's judgment in part, but remanded “for further findings of fact [the trial court’s] decision granting Constance Holl sole custody of the children....” In due course the trial court entered FINDINGS OF FACT ON REMAND. Roger again appeals. We affirm.

As we have often remarked, “[c]hild custody determinations are among the most difficult in the law.” Horton v. Horton, 519 P.2d 1131, 1132 (Alaska 1974); see also Horutz v. Horutz, 560 P.2d 397, 399 (Alaska 1977); Lacy v. Lacy, 553 P.2d 928, 929 (Alaska 1976). Trial courts are vested with broad discretion in determining child custody issues. Julsen v. Julsen, 741 P.2d 642, 648 (Alaska 1978). We will reverse a trial court’s custody determination only if we are convinced that the trial court has abused its broad discretion, or if controlling findings of fact are clearly erroneous. Id.; Starkweather v. Curritt, 636 P.2d 1181, 1182 (Alaska 1981); Horutz, 560 P.2d at 399.

When reviewing a trial court’s findings of fact, we are directed by the principle that “[i]t is primarily the trial court’s function to weigh the evidence for the purpose of making findings, and on appeal, deference must be given to the trial court’s decision, particularly because of the trial court’s advantage in observing the witness.” Bonjour v. Bonjour, 566 P.2d 667, 669 (Alaska 1977). “We merely determine whether the trial court’s finding is supported by the record.” Lone Wolf v. Lone Wolf, 741 P.2d 1187, 1190 (Alaska 1987) (quoting Brooks v. Brooks, 733 P.2d 1044, 1051 (Alaska 1987)).

In its oral findings of fact regarding custody, rendered from the bench at the conclusion of the trial, the trial court said:

But, let me tell you where I am on custody. After reviewing the evidence of the relationship of the parents to each other and the children to their parents, in spite of hearing the positions stated by the parties today, I don’t think that joint custody is appropriate for these children and I do think that they should be placed in the custody of their mother and that should not be based on some kind of contingency if they move or don’t move kind of thing and that Mr. Holl should continue to have substantial visitation. And, if the parties are able to work it out so that it continues to be one week and one week, that is a certain kind of parental wisdom that they may and have the right to exercise over their children; however, subject to the parents agreeing, which they sound like they actually have reached agreement on equal care of the children, it would be the Court’s order that the visitation of the Defendant be the standard weekend, alternating holidays and three or four weeks in the summer kind of visitation and that the Court is not making it a contingent order, it’s the order of the Court and if she wishes to grant a greater visitation, that’s up to her. I do this because I think that the key for children, as well as having a relationship with both parents which is at the heart of this idea of joint custody and of trying to find wise orders for parenting, I think that the key is reaching some stability for these — children and if you listen to the information that’s come to this Court about these children, they need that very, very much and lack it to some substantial degree by virtue of their conduct, behavior and the problems that they’ve experienced and demonstrate. One of the examples, just in today’s testimony if you listen back to it, the children saying, “Mom, can I come home?” I think that that is the kind of, you know, maybe an accidental way of phrasing the testimony, maybe it was a [381]*381precise recitation, but I think it’s characteristic of the impression that this Court has received about the view of these children toward their experience being in this split relationship and that is that they have a home one place and that they are with dad at another and that’s how it is. And, that it’s important, I think, for children to have a place. To be constantly buffeted back and forth is not wholesome, no matter how much it may be done, and that equality of time together is not the cross upon which children should be crucified. They need to have stability, a sense of place, along with a meaningful relationship with both parents. And, I think that to the extent this Court must make a finding as to what’s in the best interest of the children, it does so in finding that Constance Holl can better parent, meeting the needs for love, affection, daily care and that she can promote and will promote this meaningful relationship with Mr. Holl in spite of the problems that both sides have recognized and about which she has testified as well as Mr. Holl to some extent. So, that’s the Court’s ruling on custody.

In its ADDITIONAL FACTUAL FINDINGS that accompanied its denial of Roger’s motion for reconsideration, the trial court made several findings bearing directly on custody. It noted that it was placing particular emphasis and had scrutinized most carefully the testimony of the parents, much of the testimony of other witnesses being either cumulative or second hand. It had weighed the demeanor and had judged the credibility of the parents. The trial court was impressed with Constance’s testimony and demeanor. It found her to be believable and particularly relied on her testimony when it differed from Roger’s. It believed that many of the instances of abuse Constance recounted had actually taken place.

The trial court identified incidents of noncooperation by Roger: (a) avoidance of service of process; (b) encumbering his airplane against a standing order; (c) failure to assist Constance in maintaining the family home; (d) denial to Constance of assistance in regard to a sewage problem; (e) failure to provide adequate support for the family; (f) inability to work with Constance unless he was given equal time with the children. The court found specifically that “[Constance] did not willingly enter into any kind of permanent joint custody agreement with [Roger], but her acquiescence was dictated largely out of necessity.

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Holl v. Holl
815 P.2d 379 (Alaska Supreme Court, 1991)

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Bluebook (online)
815 P.2d 379, 1991 Alas. LEXIS 87, 1991 WL 155895, Counsel Stack Legal Research, https://law.counselstack.com/opinion/holl-v-holl-alaska-1991.