Monette v. Hoff

958 P.2d 434, 1998 Alas. LEXIS 88, 1998 WL 241280
CourtAlaska Supreme Court
DecidedMay 15, 1998
DocketS-8188
StatusPublished
Cited by31 cases

This text of 958 P.2d 434 (Monette v. Hoff) 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
Monette v. Hoff, 958 P.2d 434, 1998 Alas. LEXIS 88, 1998 WL 241280 (Ala. 1998).

Opinion

OPINION

PER CURIAM.

Following trial, the superior court awarded a child’s custody to his father and ordered that the mother’s visitation be supervised. We affirm these orders, because there was credible trial evidence that the mother was unable to meet the child’s psychological and emotional needs and posed a potential risk of abduction and flight, and that unsupervised visitation might harm the child. But we remand the child support issue for clarification, because it is unclear whether the court considered the issue de novo or deferred to an administrative support order.

Linda Monette (formerly Wade) and Robert Hoff were never married. They had one child, Thomas Wade-Hoff (Tommy), born February 7,1992. Hoff moved from Anchorage to Houston, Texas in late June 1993. He filed a complaint for custody in the superior court in Anchorage in October 1993. After interim proceedings, Tommy moved to Texas to live with his father in September 1994. In November 1994 the Alaska Child Support Enforcement Division (CSED) calculated Monette’s child support obligation as $370 per month.

A trial was held from March 24 through March 26, 1997. Superior Court Judge Michael L. Wolverton granted full custody of Tommy to Hoff and awarded Monette supervised visitation. The superior court also found that Monette had the ability to continue to pay $370 per month child support. Monette appeals.

*436 “We will reverse a trial court’s resolution of custody issues only if [we are] convinced that the record shows an abuse of discretion or if controlling factual findings are clearly erroneous.” Vachon v. Pugliese, 931 P.2d 371, 375 (Alaska 1996) (citation omitted).

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.”

Holl v. Holl, 815 P.2d 379, 380 (Alaska 1991) (quoting Bonjour v. Bonjour, 566 P.2d 667, 669 (Alaska 1977)). See also J.F.E. v. J.A.S., 930 P.2d 409, 411 (Alaska 1996) (reviewing superior court’s order of supervised visitation under abuse of discretion standard). We review a trial court’s decision on a motion to modify child support for an abuse of discretion. See Yerrington v. Yerrington, 933 P.2d 555, 557 n. 3 (Alaska 1997).

Custody. Trial courts are instructed to award child custody on the basis of the best interests of the child. AS 25.20.060, AS 25.24.150(c). The superior court found that the evidence weighed in favor of an award of custody to Hoff. The court made findings on each of the statutory factors relevant to custody. The findings squarely supported an award of custody to Hoff. In particular, there was credible evidence to support the superior court’s findings that Monette was unable to meet Tommy’s psychological and emotional needs (and may have posed a danger to Tommy), including the testimony of Dr. Lazur; the two Guardians ad Litem (GALs); Monette’s former husband; Hoff; and Tommy’s paternal grandfather. The superior court was best situated to weigh the evidence before it and its findings are well-supported by the record. See Holl, 815 P.2d at 380; Lone Wolf v. Lone Wolf, 741 P.2d 1187, 1190 (Alaska 1987). The court’s factual findings are not clearly erroneous, and it did not abuse its discretion in awarding sole legal custody to Hoff. The evidence upon which Monette relies did not require the superior court to do otherwise.

Monette contends that the superior court inappropriately relied on the testimony of former GAL Judith Rich, and gave too little weight to the evidence given by Monette’s expert, Dr. Smith. Assessment of witness credibility is left to the discretion of the superior court. See Hanlon v. Hanlon, 871 P.2d 229, 232 (Alaska 1994). Thus, the weight to be given to evidence elicited during Rich’s direct and cross examination was a matter of discretion for the superior court. The superior court may have concluded that Dr. Smith’s psychological evaluation was unpersuasive because Monette gave Dr. Smith misleading and incomplete information, and because he never saw Tommy individually or observed Tommy and Monette together. The court was not obliged to assess the evidence the way Monette would. We therefore affirm on the question of custody.

Visitation. We have stated that “while unrestricted visitation is the norm, supervised visitation can be required when the court makes findings which specify why unsupervised visitation is contrary to the best interests of the child.” J.F.E., 930 P.2d at 409. The appropriate type of visitation was a disputed matter turning on witness credibility. See Hanlon, 871 P.2d at 232. Credible evidence supported the court’s concern that Monette posed a risk of abduction and flight. For example, GAL Pamela Montgomery stated that “Ms. Monette’s history of secreting away her daughter from [the daughter’s father], as well as her conduct of not telling Mr. Hoff exactly where the child was here in Alaska for a period of time does cause concern that she presents a risk of abduction of the child.”

We also note that the need for supervision goes beyond the risk of abduction and flight. Dr. Lazur testified that “[u]nsupervised and unrestricted time ... could cause serious and irreparable damage to the child.” The superior court expressly found that “unsupervised contact between Linda Monette and Thomas Wade-Hoff could result in psychological damage to the child,” and that “Thomas has reacted adversely, showing signs of distress and deteriorated behavior when exposed to Linda Monette even for relatively short periods of visitation.” Given these findings, *437 which are not clearly erroneous, the superior court did not abuse its discretion by awarding only supervised and limited visitation to Monette.

The superior court orally stated that the visitation schedule should remain in effect for three years, at which point Monette may be entitled to a modification if she can show that there has been a change in circumstances. We conclude that this was appropriate. The superior court recommended that Monette seek psychological counseling and enroll in parenting classes. Should Mon-ette participate in such counseling and classes, she may cease to pose any risk of harming or abducting Tommy. Whenever Monette has demonstrated that she no longer presents such risks, she can ask the court to revisit the requirement of supervision and to create a plan for eventually eliminating that restriction.

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Cite This Page — Counsel Stack

Bluebook (online)
958 P.2d 434, 1998 Alas. LEXIS 88, 1998 WL 241280, Counsel Stack Legal Research, https://law.counselstack.com/opinion/monette-v-hoff-alaska-1998.