Nichols v. Nichols

516 P.2d 732
CourtAlaska Supreme Court
DecidedDecember 7, 1973
Docket1833
StatusPublished
Cited by47 cases

This text of 516 P.2d 732 (Nichols v. Nichols) 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
Nichols v. Nichols, 516 P.2d 732 (Ala. 1973).

Opinion

516 P.2d 732 (1973)

Lyman NICHOLS, Jr., III, Appellant,
v.
Kathryn Adelle NICHOLS, Appellee.

No. 1833.

Supreme Court of Alaska.

December 7, 1973.

Raymond A. Nesbett, Nesbett & Johnstone, Anchorage, for appellant.

David H. Bundy, Ely, Guess & Rudd, Anchorage, for appellee.

Before RABINOWITZ, Chief Justice, and CONNOR, ERWIN, BOOCHEVER and FITZGERALD, Justices.

OPINION

BOOCHEVER, Justice.

Lyman Nichols appeals from an October 1972 modification of a 1969 child custody decree. The parties to the action, Lyman Nichols, Jr. (Lyman) and Kathryn Adelle (Nichols) Mattison (Kay), were married in November 1956. The marriage was terminated by a decree of divorce issued in the Superior Court for the State of Alaska, Third Judicial District, October 24, 1969. Before the divorce was final, the parties engaged in heated contest extending in time from February 28 to June 18, 1969 regarding the custody of their two children: Bobby, born in 1961, and Jodi, born in 1964 and adopted by the Nichols shortly thereafter. At the conclusion of what certainly ranks among Alaska's most lengthy and thorough child custody proceedings, *733 Judge Harold J. Butcher awarded custody of the two children to the husband, Lyman.

In August of 1972, Kay filed a motion for change of custody. The matter was heard on October 20, 1972, in Anchorage by Judge Carlson who found that there had been sufficient change in circumstances since the date of the original award to justify modification of the award of custody of Jodi. Judge Carlson awarded Kay custody of Jodi, leaving Bobby with Lyman. It is from this modification that Lyman appeals.[1]

In the 1969 custody proceeding, Judge Butcher found that Lyman was a "fit and proper person" to have custody of the children, finding him to be a "capable and loving parent". The same proceeding resulted in findings that Kay had "exhibited during the marriage a pattern of extremely harsh discipline toward the children ... [resulting] in physical injury, cuts, and lacerations, and [that administration of this discipline] is detrimental to the health and well being of the children." The court further found:

The mother, plaintiff herein, has exhibited during the marriage a want of love toward her children and an absence of any deep maternal instinct toward their physical and mental well being. These personality and character traits of the mother result in her inability to cope with the day-to-day problems of rearing children on a mature and adult basis.

After also finding that the mother had been guilty of adulterous relations with one Ron Mattison, then a married United States Air Force nightclub entertainer, and that such "immoral conduct on the part of the mother has involved the children in the third-party relationship and has been detrimental to the best interests and welfare of the children", the court concluded: "The mother, plaintiff herein, is not a fit and proper person to have the care and custody of the parties' minor children."[2] The court also concluded from evidence of Mattison's lack of interest in the welfare of his own son by a former marriage that "a household in which Mr. Mattison is the father figure is not going to be a wholesome household for 2 small children."

Subsequent to the original custody decision, Kay married Mattison, and later they moved to Florida. Lyman Nichols also remarried in August 1969; that marriage *734 terminated by divorce in July of 1971. In 1972 Lyman moved from Anchorage to Cooper Landing, where he still resides with the two children.

In reaching his conclusion that the decree should be modified, Judge Carlson found that Lyman was a fit and proper person to have the care and custody of Bobby, and that Kay was a fit and proper person to have the care and custody of Jodi. He found changes in circumstances in that Jodi "has reached an age where she needs the care and comfort of her mother", that she would benefit from an environment that provides two parental figures, that Jodi loves and needs Kay, who in turn loves her, and that the passage of time itself is a change in circumstances.[3] The court further found that the minor children would not be harmed by being separated.[4]

In this appeal Lyman contends that the court erred and abused its discretion in finding the mother a fit parent in the absence of any evidence showing a change of circumstances since the original custody decree.

This court, in reviewing lower court child custody decisions, applies the "clearly erroneous" standard:

As we noted in Sheridan, our law now vests a very wide discretion in the trial court to determine where custody shall be placed. We will reverse the determinations of the trial court only where we are convinced that the findings of the trial court are clearly erroneous and the record indicates that an abuse of discretion has occurred. (citation omitted).[5]

We are thus faced with determining whether or not the trial court clearly erred in its findings pertaining to the modification of custody.

There is statutory authorization for such modification, AS 09.55.205 stating:

Judgments for custody. In an action for divorce or for legal separation the court may, during the pendency of the action, or at any time thereafter during the minority of any child of the marriage, make an order for the custody of or visitation with the minor child which may seem necessary or proper and may at any time modify or vacate the order. In awarding custody the court is to be guided by the following considerations:
(1) by what appears to be for the best interests of the child and if the child is of a sufficient age and intelligence to form a preference, the court may consider *735 that preference in determining the question;
(2) as between parents adversely claiming the custody neither parent is entitled to it as of right. (emphasis added).

The statute does not refer to a requirement of "change of circumstance" in order to modify a decree. We have discussed such a requirement, however, in King v. King[6] where we stated:

Certainly a court should not alter a previous custody determination without a reasonable basis for concluding that the best interests of the child dictate such a change. Without some change in circumstance there is no logical basis for a court to alter a determination which has once seriously and finally been made. To do so might well constitute an abuse of discretion. However, as we noted at the outset, both statute and decision make it clear that the paramount consideration is the best interest of the child. The concept of "substantial change" of circumstances is not a limitation on the discretion of the trial court to determine custody according to the best interest of the child. Rather, it may be considered simply a rule of judicial economy designed to discourage discontented parents from continually renewing custody proceedings.
In short, the "substantial change" of circumstances is not an initial obstacle which must be overcome by either party in order to have the court redetermine custody. It is simply one of the factors to be weighed in the balance by the court when a motion for modification of a divorce decree in respect to custody is made. (footnote omitted).

Applying the King

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Abby D. v. Sue Y.
378 P.3d 388 (Alaska Supreme Court, 2016)
Collier v. Harris
377 P.3d 14 (Alaska Supreme Court, 2016)
Susan M. v. Paul H.
362 P.3d 460 (Alaska Supreme Court, 2015)
Stephanie W. v. Maxwell V.
274 P.3d 1185 (Alaska Supreme Court, 2012)
Heather W. v. Rudy R.
274 P.3d 478 (Alaska Supreme Court, 2012)
Rego v. Rego
259 P.3d 447 (Alaska Supreme Court, 2011)
Peterson v. Swarthout
214 P.3d 332 (Alaska Supreme Court, 2009)
Cochran v. Cochran
5 So. 3d 1220 (Supreme Court of Alabama, 2008)
McLane v. Paul
189 P.3d 1039 (Alaska Supreme Court, 2008)
Melendrez v. Melendrez
143 P.3d 957 (Alaska Supreme Court, 2006)
C.R.B. v. C.C.
959 P.2d 375 (Alaska Supreme Court, 1998)
Hayes v. Hayes
922 P.2d 896 (Alaska Supreme Court, 1996)
McQuade v. McQuade
901 P.2d 421 (Alaska Supreme Court, 1995)
Long v. Long
816 P.2d 145 (Alaska Supreme Court, 1991)
Nichols v. Mandelin
790 P.2d 1367 (Alaska Supreme Court, 1990)
Garding v. Garding
767 P.2d 183 (Alaska Supreme Court, 1989)
McClain v. McClain
716 P.2d 381 (Alaska Supreme Court, 1986)
Gratrix v. Gratrix
652 P.2d 76 (Alaska Supreme Court, 1982)
Morel v. Morel
647 P.2d 605 (Alaska Supreme Court, 1982)

Cite This Page — Counsel Stack

Bluebook (online)
516 P.2d 732, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nichols-v-nichols-alaska-1973.