Kinnard v. Kinnard

43 P.3d 150, 2002 Alas. LEXIS 37, 2002 WL 398824
CourtAlaska Supreme Court
DecidedMarch 15, 2002
DocketS-10207
StatusPublished

This text of 43 P.3d 150 (Kinnard v. Kinnard) 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
Kinnard v. Kinnard, 43 P.3d 150, 2002 Alas. LEXIS 37, 2002 WL 398824 (Ala. 2002).

Opinion

43 P.3d 150 (2002)

Bernard R. KINNARD, Appellant,
v.
Debra F. KINNARD, Appellee.

No. S-10207.

Supreme Court of Alaska.

March 15, 2002.

*151 Gayle L. Garrigues, Law Office of Rita T. Allee, P.C., Fairbanks, for Appellant.

Andrew Harrington, Alaska Legal Services Corporation, Fairbanks, for Appellee.

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

OPINION

FABE, Chief Justice.

I. INTRODUCTION

This case arises out of the divorce of Bernard and Debra Kinnard. The superior court awarded shared custody of Kristine Kinnard to Bernard, her father, and Debra, her stepmother. Because the trial court did not err in finding that Debra is the psychological parent of Kristine, and that removal of Debra from Kristine's life would be detrimental to the child, we affirm the award of shared custody. We also affirm the trial *152 court's order directing Bernard to either reinstate Debra to his health insurance policy or pay for her surgery out of his share of his pension.

II. FACTS AND PROCEEDINGS

A. Factual History

Bernard and Debra Kinnard were married on October 25, 1993. There were no children born of the marriage. However, during the marriage, Bernard's two children from previous relationships—Brandon, born September 19, 1982, and Kristine, born November 11, 1988—resided with Bernard and Debra. Bernard is a nutritional cook at a hospital and Debra is a licensed foster parent who cares for disabled children. Bernard and Debra separated in November 1999.

Bernard now lives with another woman, Rachel, who has an eleven-year-old daughter named Andrea. Rachel has made physical threats toward Debra, on one occasion in the presence of Kristine. Kristine also reports that Rachel's daughter, Andrea, often hits her. In June 2000 Bernard and Rachel required Kristine to write a letter to the custody investigator claiming that she did not want to live with Debra and that "her new mother" was Rachel. Bernard and Rachel told Kristine to write a second letter in which she stated that she did not want to see Debra anymore. Kristine later told the custody investigator that Bernard and Rachel forced her to write the letters and instructed her on what to say and that the statements in the letters were not true. In the custody investigator's view, Bernard and Rachel were trying to "thwart the relationship between Kristine and Debra."

Debra suffers from a severe degenerative joint disorder in her knees which is exacerbated by her weight. The joint disorder apparently derives from a 1994 injury sustained while Debra was at work. Because the joint disorder causes pain in her knees, Debra is unable to exercise and lose weight, which would in turn alleviate the pain in her knees. Debra's doctor first suggested that Debra consider having bariatric surgery in early 1999.[1] Debra reviewed her options with her doctor, and in the fall of 1999 they decided that she should have the surgery at the University of Washington hospital.

The University of Washington scheduled Debra for her first pre-surgery tests during the week of July 10, 2000. This date conflicted with the custody investigator interviews and Debra was unable to travel to Seattle for the pre-surgery tests. Debra then tried to schedule the surgery for the winter of 2000, but the University of Washington refused because of the weather in Alaska at that time of year, suggesting that the pre-surgery tests and the eventual surgery take place in the spring of 2001. Before trial, and while the parties were still legally married, Bernard wrote a letter to his health insurance company requesting that Debra be dropped from his employer-provided insurance policy. Thus, Debra has been unable to afford the surgery.

B. Procedural History

When Bernard filed for divorce in January 2000, Debra maintained that she stood in loco parentis to both Brandon and Kristine and requested primary physical custody of Brandon and joint physical custody of Kristine. Superior Court Judge Ralph R. Beistline issued a standing order and preliminary injunction for domestic relations actions that restrained the parties from disposing of marital property.

Superior Court Judge Richard D. Savell ordered a custody investigation. The custody investigator quickly determined that Brandon would not be part of the investigation because he would be eighteen years of age before the investigation was complete.[2] The custody investigator ultimately concluded that Debra was the psychological parent of Kristine and recommended that the parties share legal and physical custody of Kristine. The custody investigator recommended *153 that this shared custody consist of alternating weeks with each parent.

Bernard took the position at trial that he should have sole custody and that Debra should have no visitation with Kristine. He claimed that pursuant to the United States Supreme Court's recent decision in Troxel v. Granville,[3] Debra bore the burden of proving that Bernard is an unfit parent in order to maintain her claim to custody.

After a three-day trial in December 2000, the trial court found the evidence to be "overwhelming," even "uncontradicted," that Debra holds the place of a mother in Kristine's life. The trial court awarded the parties shared custody but withheld the divorce decree until after Debra's surgery so that she could retain her health insurance.

Bernard filed a motion to reconsider the trial court's decision to delay the decree of divorce to allow for Debra's surgery. Bernard supplemented the motion, arguing that Debra's surgery was purely elective and she should try dieting or exercise instead. The trial court granted the motion to reconsider and ordered that a divorce decree be entered. However, the trial court noted in its order that

[Bernard's] removal of medical coverage before trial and without notice or leave of court has damaged [Debra] and violated the Presiding Judge's Standing Order. He will be liable for all costs incurred by [Debra] that would have been covered by insurance but for his wrongful acts. His liability may be enforced against his pension.

Bernard appeals the award of shared custody and the order holding him liable for the costs of Debra's medical care.

III. STANDARD OF REVIEW

It is well settled that trial courts have broad discretion in determining child custody issues.[4] We will reverse a trial court's custody determination only if we are convinced that the trial court has abused its discretion or that controlling findings of fact are clearly erroneous.[5] An abuse of discretion may be found where the trial court considered improper factors, failed to consider statutorily mandated factors, or improperly weighed certain factors in making its determination.[6] A factual finding is clearly erroneous only when a review of the entire record leaves us with a firm conviction that the trial court has made a mistake.[7] With respect to questions of law, we apply our independent judgment and adopt the rule that is most persuasive in light of precedent, reason, and policy.[8]

IV. DISCUSSION

A. The Finding that Debra Is the Psychological Parent of Kristine Is Not Clearly Erroneous.

The trial court found that Debra had become Kristine's psychological parent.

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Cite This Page — Counsel Stack

Bluebook (online)
43 P.3d 150, 2002 Alas. LEXIS 37, 2002 WL 398824, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kinnard-v-kinnard-alaska-2002.