Mallory D. v. Malcolm D.

290 P.3d 1194, 2012 Alas. LEXIS 177, 2012 WL 6720576
CourtAlaska Supreme Court
DecidedDecember 28, 2012
DocketNo. S-14436
StatusPublished
Cited by17 cases

This text of 290 P.3d 1194 (Mallory D. v. Malcolm D.) 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
Mallory D. v. Malcolm D., 290 P.3d 1194, 2012 Alas. LEXIS 177, 2012 WL 6720576 (Ala. 2012).

Opinion

OPINION

STOWERS, Justice.

I. INTRODUCTION

Malcolm D. and Mallory D.1 were married and had three children, Jason, Brooke, and Megan. In August 2009 Malcolm and Mallory filed a petition for dissolution of marriage. The parties agreed to joint legal custody and shared physical custody. In May 2010 Mallory moved to modify custody; she wanted sole legal and primary physical custody of Brooke and Megan, as well as additional [1198]*1198visitation with Jason. Mallory asserted a change in cireumstances because Brooke reported being singled out among the children for punishment and Malcolm being mean to her. Malcolm opposed, contending there was no change in cirenmstance to warrant custody modification and that the modification would not be in the best interests of the children.

The superior court found that there was a change in circumstance regarding Brooke and Megan but denied Mallory's motion to modify custody for the daughters.

The court found that Malcolm and Mallory had each committed two acts of domestic violence during the marriage but that neither parent was less likely than the other to perpetrate domestic violence in the future.2 The superior court concluded that under these circumstances, the presumption in AS 25.24.150(g), which would preclude a parent from obtaining legal or physical custody of the children if that parent had a history of domestic violence against the other parent, did not apply to either parent in this case. The superior court fashioned the custody decree taking into consideration the best interests of the children notwithstanding the requirements of AS 25.24.150(h).

We conclude that when both parents are found to have a history of domestic violence and neither parent is more likely to perpetrate violence than the other, the superior court has the discretion to determine that the presumption set forth in AS 25.24.150(g) does not apply. We further conclude that the superior court did not clearly err when making its factual findings and did not abuse its discretion when it weighed the best interest factors under AS 25.24.150(c) and determined that custody should not be modified.

II. FACTS & PROCEEDINGS

Maleolm D. and Mallory D. were married in 19983. They have three minor children, Jason, Brooke, and Megan. In August 2009 Malcolm and Mallory filed a petition for dissolution of marriage. In their petition, they checked the "yes" box for the question, "Has there been any domestic violence during the marriage (whether or not a complaint was filed)?" The parties agreed to joint legal custody and shared physical custody on a week on/week off basis.

Around September 2009 Malcolm starting dating Holly, a family friend, and she and her daughter moved in with Maleolm and his children in November 2009. Holly's daughter had been friends with Brooke before the dissolution.

Master David L. Zwink held a hearing on the dissolution petition in October 2009 at which both Malcolm and Mallory appeared pro se. The parties later submitted a document updating their custody arrangement so that Jason would spend 70% of his time with Malcolm and 30% of his time with Mallory. In January 2010 the superior court approved the master's recommended decree of dissolution of marriage and memorialized the custody arrangement in a child support order.

In May 2010 Mallory moved to modify custody. She sought sole legal and primary physical custody of Brooke and Megan, as well as additional visitation with Jason to reach the previously agreed-upon 70/30 split. In her affidavit Mallory chronicled several text message exchanges between herself and Brooke in which Brooke stated that she was singled out among the children (including Holly's daughter) and punished, and that Malcolm was mean to her or yelled at her. Malcolm contended there was no change in cireumstance to warrant custody modification and that the modification would not be in the best interests of the children. In his affidavit Malcolm stated that he had a close relationship with his children and the conflict with Brooke stemmed from her dislike of [1199]*1199chores and her complaints to her mother about Maleolm's insistence that she do them.

A custody investigator interviewed Malcolm and Mallory, as well as Jason, Brooke, and Megan, and filed a limited custody investigation report in November 2010. The report explained, "This brief investigation and report should not be considered a substitute for the more in-depth analysis that is required to develop recommendations for long-term placement in the parties' divorcee or custody action." The custody investigator's assessment stated:

Based on the children's reports there appears to be some conflict between Father and [Brooke] which appears to be typical of many parents and their adolescent children. In a family where there is a divorce, children can easily learn to manipulate their parents when they don't like the punishment they are receiving. [Brooke] appears to be doing this; running to Mother when she does not like what happens at Father's. While there is nothing inappropriate about [Brooke] confiding in her mother, the problem arises when there is a perceived alignment with the child by one parent against the other parent. This can serve to undermine the other parent's authority and relationship with the child. Like all children, [Brooke] needs to learn to resolve conflict and deal with the consequences of her actions.

On April 4, 6, and May 31, 2011, Superior Court Judge Eric Smith held a bench trial on two issues-the custody modification and the division of marital assets, the family home.3 The bulk of the testimony was about the parents' relationship with Brooke, who had just turned 18.

Because Mallory testified that Malcolm committed domestic violence, the court and the attorneys for the parties spent significant time discussing AS 25.24.150(g) which states, "There is a rebuttable presumption that a parent who has a history of perpetrating domestic violence against the other parent, a child, or a domestic living partner may not be awarded sole legal custody, sole physical custody, joint legal custody, or joint physical custody of a child." 4 The court stated that because this rebuttable presumption is inflexible, if it found that Malcolm had a history of committing domestic violence in the marriage, Mallory would have to be awarded sole legal and physical custody of all three children (as opposed to Jason staying with his father), and Malcolm would have to enroll in a batterer's program. Maleolm also testified to two instances of domestic violence by Mallory when Mallory slapped him. The court discussed how the statute was silent if the court were to find that both Malcolm and Mallory had a history of committing domestic violence but neither was likely to continue to perpetrate the violence.5

The court issued an order finding that there was a change in cireumstances regarding Brooke and Megan but denying Mallory's motion to modify custody for the daughters. It granted Mallory's motion regarding visitation with Jason. In its 19-page order the court addressed each of the custody criteria outlined in AS 25.24.150(c).6 It found [1200]

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Cite This Page — Counsel Stack

Bluebook (online)
290 P.3d 1194, 2012 Alas. LEXIS 177, 2012 WL 6720576, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mallory-d-v-malcolm-d-alaska-2012.