Ijd v. Drd

961 P.2d 425, 1998 Alas. LEXIS 126, 1998 WL 430361
CourtAlaska Supreme Court
DecidedJuly 31, 1998
DocketS-8309
StatusPublished

This text of 961 P.2d 425 (Ijd v. Drd) 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
Ijd v. Drd, 961 P.2d 425, 1998 Alas. LEXIS 126, 1998 WL 430361 (Ala. 1998).

Opinion

961 P.2d 425 (1998)

I.J.D., Appellant,
v.
D.R.D., Appellee.

No. S-8309.

Supreme Court of Alaska.

July 31, 1998.

*426 Peter F. Mysing, Kenai, for Appellant.

Carol A. Brenckle, Kenai, for Appellee.

Before MATTHEWS, C.J., and COMPTON, EASTAUGH, FABE and BRYNER, JJ.

OPINION

MATTHEWS, Chief Justice.

I. INTRODUCTION

This case involves a custody dispute between I.J.D. (Irma) and D.R.D. (Daniel), the parents of J.N.D. (Joseph).[1] The trial court awarded sole legal and primary physical custody of Joseph to Daniel with limited visitation to Irma. We affirm the award of custody to Daniel but vacate the visitation award to Irma and remand for reconsideration.

II. FACTS AND PROCEEDINGS

A. Facts

Irma was previously married to Daniel's younger brother, Dell. In February 1991, when Irma was eight months pregnant with Dell's child, Dell was killed in the Gulf War. Their child, R.N.D. (Rachel), was born in April 1991. Soon after Rachel's birth, Irma moved from Washington to Alaska to be near Dell's extended family. She purchased a home next to Dell's parents.

In November 1992 Irma began a relationship with Dell's older brother, Daniel. Irma and Rachel moved into Daniel's home in June 1993; Joseph was born in March 1994. During this time Irma and Daniel's relationship was volatile, plagued by frequent arguments and mutual domestic violence. Daniel had shared custody of his eleven-year-old son, *427 Adam, from a previous marriage. Eventually, Adam refused to visit Daniel while Irma was present, due to Irma's unpredictable, hostile behavior. Daniel and Irma permanently separated in October 1994 and Irma, along with Rachel and Joseph, moved out of Daniel's home.

Soon after the separation, Daniel began visiting Joseph. Irma initially expressed a preference that Daniel only visit Joseph at her home and in her presence. Eventually, Irma allowed Daniel to take Joseph to his home; however, she continued to exhibit considerable reluctance to expand Daniel's visitation with either Joseph or Rachel. In February 1995 Daniel and Irma had an explosive argument about visitation. This resulted in Irma leaving an answering machine message at Daniel's home that in part said:

[Y]ou may never see the kids again, unless it's accidental at a relative's house or anywhere else. You may not talk to them unless they talk to you first; you cannot talk to them about your house life, period, because they are not part of your life.

After that incident, Irma suspended Daniel's visitation with Joseph.

In June 1995 Irma began a relationship with John. She eventually required Daniel to negotiate and schedule most visits through John, which increased the friction surrounding visitation. Irma began encouraging Joseph and Rachel to refer to John as "daddy" and at one point allowed Joseph to use John's last name. Eventually, Irma refused to allow Daniel any contact at all with Rachel. Irma's relationship with John ended in November 1996.

B. Proceedings

Daniel filed a Complaint for Custody in October 1995, seeking shared legal and physical custody of Joseph and visitation with Rachel, his niece. Irma counterclaimed for sole legal and primary physical custody of Joseph. Daniel then filed a motion seeking interim custody and visitation; Irma opposed and filed a countermotion. The trial court granted Irma's countermotion in November 1995, awarding interim sole legal and primary physical custody of Joseph to Irma and adopting Irma's recommendation that Daniel be allowed one overnight visit every other weekend and "incidental" daytime visitation of two to three hours in duration, two to three times weekly.[2] The trial court then ordered a custody investigation.

In January 1996 Daniel filed a Motion to Clarify Order on Interim Custody. He requested an additional twenty-four-hour visitation period to replace the "incidental" visitation. Daniel complained that John had taken complete control over the visitation schedule and that John interpreted the term "incidental" to mean "accidental" visits at Daniel's parents' home. Daniel also claimed that Irma had violated the interim visitation order. The trial court denied the motion.

Pursuant to the request of Custody Investigator Susan Arth, the court ordered Daniel and Irma to undergo psychological evaluations conducted by Dr. Paul Turner. Dr. Turner observed each parent's interaction with Joseph, conducted clinical interviews, and administered several psychological assessments. Dr. Turner found that Daniel suffered from mild to moderate depression and that Irma suffered from a personality disorder "not otherwise specified" with a clinically significant mixture of histrionic and dependent aspects. He noted that both parents should participate in treatment. Although Dr. Turner observed that Irma and Daniel each had adequate parenting skills to care for Joseph, he concluded that their abilities were impaired by their psychological conditions. Dr. Turner also found that Daniel appreciated the significance of maintaining a relationship between Irma and Joseph, but that Irma had difficulty appreciating Joseph's needs and allowed her anger and hostility to interfere with Daniel's relationship with Joseph.

Ms. Arth filed the Custody Investigation Report on May 29, 1997. She recommended that the trial court award Daniel sole legal and primary physical custody of Joseph with weekend and holiday visitation to Irma. Ms. Arth emphasized that in the absence of this *428 arrangement, Irma would consistently interfere with Daniel's relationship with Joseph and that Joseph would be "overwhelmed by his mother's dependency needs and fits of anger." She also expressed concern for Joseph's physical well-being if he remained in Irma's care.

The custody trial was held in August 1997. After considering substantial trial testimony in support of both parents, the court awarded sole legal and primary physical custody of Joseph to Daniel. It granted visitation to Irma as outlined in the Custody Report, consisting of three weekends of every four, alternating holidays, and other times as arranged by both parents.

III. DISCUSSION

A. Standard of Review

We will only disturb the trial court's resolution of custody issues if controlling findings of fact are clearly erroneous or if the record shows that an abuse of discretion has occurred. See Zimin v. Zimin, 837 P.2d 118, 123 n. 10 (Alaska 1992). Findings of fact are clearly erroneous when we are left with a definite and firm conviction, viewing the record as a whole, that a mistake has been made. See Duffus v. Duffus, 932 P.2d 777, 779 (Alaska 1997). An abuse of discretion exists if the trial court considered improper factors, failed to consider statutorily mandated factors, or assigned disproportionate weight to particular factors while ignoring others. See Borchgrevink v. Borchgrevink, 941 P.2d 132, 134 (Alaska 1997).

B. The Trial Court Did Not Err by Awarding Sole Legal and Primary Physical Custody to Daniel

At the outset, we emphasize that the goal in child custody proceedings is to arrive at a decision that promotes the best interests of the child. See

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Bluebook (online)
961 P.2d 425, 1998 Alas. LEXIS 126, 1998 WL 430361, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ijd-v-drd-alaska-1998.