Rm v. Sg

13 P.3d 747, 2000 WL 1801269
CourtAlaska Supreme Court
DecidedDecember 8, 2000
DocketS-9163
StatusPublished

This text of 13 P.3d 747 (Rm v. Sg) 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
Rm v. Sg, 13 P.3d 747, 2000 WL 1801269 (Ala. 2000).

Opinion

13 P.3d 747 (2000)

R.M., Appellant,
v.
S.G., Appellee.

No. S-9163.

Supreme Court of Alaska.

December 8, 2000.

*748 Kenneth C. Kirk, Anchorage, for Appellant.

Phyllis A. Shepherd, Law Office of Phyllis A. Shepherd, Anchorage, for Appellee.

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

OPINION

FABE, Chief Justice.

I. INTRODUCTION

During a visit with their father, Scott Grenville's[1] three daughters complained of abuse in the household of the custodial parent, *749 Rose Marlowe, and her new husband, Michael Marlowe. Scott sought and received a domestic violence restraining order and moved for custody of the girls. The superior court set a custody modification hearing and appointed a child custody investigator. The court held the hearing, admitted the custody investigator's report, and determined that the circumstances justified modification of custody, awarding custody to Scott, and requiring that Rose's visitation with her daughters be supervised. Rose appeals. Because we find that the trial court's factual findings were not clearly erroneous and its legal conclusions were correctly reached, we affirm the decision of the superior court.

II. FACTS AND PROCEEDINGS

Rose Marlowe and Scott Grenville ended their nine-year marriage in 1997. The terms of their dissolution reflected the parties' agreement that Rose have full physical and legal custody of their three daughters. During the marriage Rose and her mother provided primary care to the children, while Scott frequently worked nights as a manager at a fast food restaurant.

Shortly after the dissolution, Rose remarried. Rose did not tell Scott of her remarriage for several months.

The parties failed to agree on a specific visitation schedule in their dissolution, but resolved to work things out amicably. Accordingly, in the summer of 1998, Rose permitted Scott to take the children to Arizona for an extended visit with Scott's relatives. During the visit the children made allegations that physical abuse occurred in Michael and Rose's household.

Scott subsequently sought and received a domestic violence restraining order. The order granted him temporary custody, allowed Rose to have supervised visitation with the children, and barred Michael's presence during visitation. A hearing was scheduled to review the order, but was postponed when Rose consolidated the domestic violence and dissolution cases. She asked for the return of the children to her custody in Alaska. Scott then sought full custody of the children, claiming that Rose's remarriage and Michael's alleged abuse constituted a material change in circumstances.

Superior Court Judge Beverly W. Cutler ordered the children returned to Alaska and appointed a custody investigator, Dr. Melinda Glass. Dr. Glass conducted a thorough investigation and issued a sixty-two page report. She recommended awarding Scott full custody with Rose receiving short periods of supervised visitation.

In the custody hearing, the superior court considered extensive evidence, including Dr. Glass's testimony and report. The court found a substantial change in circumstances resulting from Michael's extreme physical discipline of the children. The court considered evidence that Michael had spanked the children with objects including a belt, a metal spoon, and a spatula, and that one child had been spanked hard enough to cause bleeding. The court concluded that Michael had engaged in unacceptable corporal punishment. The court found Rose to be a capable physical custodian. But it also found that Rose condoned her husband's behavior. As a result, the court found, the children validly feared that their mother would not protect them from Michael. In light of the children's preferences, the evidence of inappropriate physical punishment by Michael, and the finding of Rose's inability to foster a loving relationship between the children and Scott, the court concluded that Scott's custody would serve the children's best interests. The court also found that Rose's visitation should be supervised. Rose appeals.

III. STANDARD OF REVIEW

"Courts typically review discovery orders under the abuse of discretion standard."[2] And "[t]he standard of review of a trial court's decision to admit evidence is abuse of discretion."[3]

*750 We "will reverse a trial court's resolution of custody issues only if this court is convinced that the record shows an abuse of discretion or if controlling factual findings are clearly erroneous."[4]

IV. DISCUSSION

A. Procedural Issues

Rose raises three procedural challenges to the superior court's decision. First, she claims that by failing to order the custody investigator to release the raw data from Scott's psychological tests the court foreclosed Rose's opportunity to challenge the investigator's conclusions. Second, Rose argues that she was unable to adequately cross-examine the custody investigator because the court did not allow her to depose Dr. Glass without paying a substantial fee in advance. Finally, Rose argues that the court admitted hearsay statements through the custody investigator's report.

1. Release of custody investigator's psychological testing data

Both prior to and during the modification hearing, Rose sought access to raw data from the custody investigator's psychological tests of Scott Grenville. Dr. Glass, citing the ethical obligations of her profession, refused to release the data to anyone but a qualified mental health care professional. For the same reason, Dr. Glass required Scott Grenville's permission to release his test data. Although Rose sought to compel discovery and release of the data, the court did not rule on Rose's motion because Scott indicated that he would consent to release the data directly to Rose's expert, Dr. Bruce Smith. Scott soon changed his mind and informed Rose, by letter, that he would not consent to release the data after all. Rose never obtained a printed record of the information she sought, although Dr. Glass disclosed some of the data underlying Scott's test results in her hearing testimony.

Rose argues that her inadequate access to Scott's psychological test data unfairly deprived her of the opportunity to have her own expert analyze the data and offer an opinion. However, she did not take reasonable steps to remedy her situation once she learned of Scott's refusal to release the data. Upon learning that Scott would not authorize the data's release to her expert, Rose could have renewed her motion to compel its production. She also could have requested a continuance in order to have time to seek independent evaluation of the data. She did neither,[5] but instead moved to exclude from evidence Dr. Glass's entire testimony and report. The superior court correctly refused to grant this extreme and inappropriate remedy.

We have discussed appropriate sanctions for inadequate discovery responses in cases interpreting Alaska Civil Rule 37. Rule 37 limits a court's power to "make an order that has the effect of establishing or dismissing a claim or defense or determining a central issue in the litigation."[6] It also promotes narrowly tailored sanctions by requiring courts to consider "whether a lesser sanction would adequately protect the opposing party and deter other discovery violations."[7]

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

Related

Gratrix v. Gratrix
652 P.2d 76 (Alaska Supreme Court, 1982)
Borchgrevink v. Borchgrevink
941 P.2d 132 (Alaska Supreme Court, 1997)
Williams v. Utility Equipment, Inc.
837 P.2d 1112 (Alaska Supreme Court, 1992)
Padgett v. Theus
484 P.2d 697 (Alaska Supreme Court, 1971)
Sykes v. Melba Creek Mining, Inc.
952 P.2d 1164 (Alaska Supreme Court, 1998)
Hutchins v. Schwartz
724 P.2d 1194 (Alaska Supreme Court, 1986)
Municipality of Anchorage v. Anchorage Daily News
794 P.2d 584 (Alaska Supreme Court, 1990)
Horutz v. Horutz
560 P.2d 397 (Alaska Supreme Court, 1977)
Evans v. Evans
869 P.2d 478 (Alaska Supreme Court, 1994)
Arbelovsky v. Ebasco Services, Inc.
922 P.2d 225 (Alaska Supreme Court, 1996)
Preblich v. Zorea
996 P.2d 730 (Alaska Supreme Court, 2000)
Underwriters at Lloyd's London v. Narrows
846 P.2d 118 (Alaska Supreme Court, 1993)
Ketchikan Cold Storage Company v. State
491 P.2d 143 (Alaska Supreme Court, 1971)
Monette v. Hoff
958 P.2d 434 (Alaska Supreme Court, 1998)
Wasserman v. Bartholomew
923 P.2d 806 (Alaska Supreme Court, 1996)
Lythgoe v. Guinn
884 P.2d 1085 (Alaska Supreme Court, 1994)
R.M. v. S.G.
13 P.3d 747 (Alaska Supreme Court, 2000)
J.F.E. v. J.A.S.
930 P.2d 409 (Alaska Supreme Court, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
13 P.3d 747, 2000 WL 1801269, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rm-v-sg-alaska-2000.