Rooney v. Rooney

914 P.2d 212, 1996 Alas. LEXIS 33, 1996 WL 170554
CourtAlaska Supreme Court
DecidedApril 12, 1996
DocketS-6535
StatusPublished
Cited by34 cases

This text of 914 P.2d 212 (Rooney v. Rooney) 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
Rooney v. Rooney, 914 P.2d 212, 1996 Alas. LEXIS 33, 1996 WL 170554 (Ala. 1996).

Opinion

*214 OPINION

RABINOWITZ, Justice.

I. INTRODUCTION

This appeal requires us to review the superior court’s award of primary physical custody of Morgan Michael, the biological child of Virginia Rooney, to Thomas Rooney.

II. FACTS AND PROCEEDINGS

Virginia J. Rooney (Virginia) married Thomas D. Rooney, Sr. (Tom) in Wrangell, on March 24, 1973. Virginia is Tlingit and Tom is Caucasian. Virginia had one child from a previous relationship, Jeffrey. Tom adopted Jeffrey shortly after the couple was married. The couple also had one child together, Thomas, Jr., who was born in 1973. Because both Jeffrey and Thomas, Jr. have reached the age of majority, their custody is not at issue in this appeal.

Tom and Virginia “had an on again off again relationship.” During one period of separation Virginia became pregnant with Morgan Michael who was born on October 4, 1983. Tom is not the biological father of Morgan, nor does it appear from the record that he legally adopted Morgan.

Tom and Virginia divorced in October - 1987. The couple was awarded joint legal custody and shared physical custody of Thomas, Jr., and Morgan. However, the parties continued in an intimate relationship, and the physical custody provisions were ignored.

In December 1992 the parties permanently separated. After the separation, both parties remained in Wrangell, and Morgan spent approximately half the week with each parent.

In 1993, Tom remarried. During the same period, Virginia decided to move to Sitka to attend'the University of Alaska Southeast. She wanted to bring Morgan with her and discussed the matter with Tom. They were unable to reach an agreement and the beginning of the school year was approaching, so Virginia felt she “was forced to take matters into [her] own hands.” In August, she moved with Thomas, Jr. and Morgan to Sit-ka. This decision precipitated a motion by Tom to modify the previous custody decree.

A hearing was held before the superior court in Wrangell on September 1, 1993. The superior court entered an interim custody order shortly thereafter in which it awarded primary physical custody during the school year to Tom. Additionally, the superi- or court appointed a guardian ad litem (GAL).

In a letter to the superior court dated March 25, 1994, the GAL recommended that Morgan live alternate years with each parent until he reaches high school. At that time he could decide in which community he wished to spend his high school years. The GAL noted that Virginia and Tom “appear equally capable and desirous of meeting Morgan’s needs and providing a stable environment that would also allow an open and loving relationship between Morgan and his other parent.” The GAL discussed the history of past substance abuse by both parents, stating that they both had overcome their problems and remained sober for several years. She commended both for their personal growth and their work to improve their parenting skills. In recommending the split physical custody arrangement, she noted that Morgan “is a child of mixed ethnic background” and needs to be exposed to both cultures. She also emphasized that Morgan favored this arrangement. Finally, she stated that Morgan was a good student and made friends easily and that she therefore believed he would “be able to move easily from one community to another.”

The superior court rejected the GAL’s recommendation and instead awarded primary physical custody during the nine-month school year to Tom in Wrangell. Morgan would spend the summer and most other school vacations with Virginia in Sitka. The superior court found that both parents were equally capable and that “with either of his parents Morgan would be safe, protected, and would thrive.” The major factor which the superior court relied on in placing Morgan with Tom was continuity. The court found that Morgan was thriving in Wrangell and there was therefore no reason to risk moving him. Virginia now appeals.

*215 III. STANDARD OF REVIEW

We have repeatedly emphasized that the superior court enjoys broad discretion in its determination of custody questions. 1 We will only overturn such a determination when it can be shown that the trial court abused this discretion or that its factual findings are clearly erroneous. 2 “An abuse of discretion in a modification proceeding is established by a showing that the trial court considered improper factors in making its determination, that it failed to consider statutorily mandated factors, or that too much weight was assigned to some factors.” 3

IV. DISCUSSION

A. Did the Superior Court Err in Not Granting Virginia a Custody Preference?

At the time Tom and Virginia were divorced in October 1987, the superior court entered the following relevant finding of fact:

The parties have three minor children: Jeffrey Alen Rooney, born October 4, 1970, age 16; Thomas Duane Rooney, Jr., born August 1, 1973, age 14; and, Morgan Michael Rooney, born October 4, 1983, age 3.[ 4 ]

In its 1987 decree of divorce, the superior court ordered, in part:

Plaintiff and defendant shall have joint custody of the parties three minor children, Morgan Michael Rooney, Thomas Duane Rooney and Jeffrey Allen Rooney with physical custody as set out in the Findings of Fact and Conclusions of Law.

In deciding Tom’s motion to modify the custody provisions of the 1987 decree, the superior court stated at the outset of its Findings of Fact and Conclusions of Law:

Tom Rooney is not the biological parent of Morgan Rooney, but he is clearly Morgan’s legal and psychological parent and the parent/child relationship and status was [sic] determined at the time of the original divorce.

Given this finding, the superior court determined that “[t]he appropriate standard to be applied in this case is the best interests of the child.” Virginia argues that this was error because this court has expressed a preference for the biological parent in custody disputes between a biological parent and a nonbiological parent. 5

Tom argues that by failing to raise the issue of the biological preference at the time of their 1987 divorce proceedings, Virginia is precluded from doing so now. He contends that the parties treated Morgan as a child of their marriage from the time of his birth, through divorce proceedings in 1987, and up until Tom filed his motion to modify the custody provisions of the 1987 decree. Tom contends, based on the statutory language in AS 25.30.110, 6 that because the issue was resolved in the 1987 proceeding, it is binding on Virginia. 7

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Bluebook (online)
914 P.2d 212, 1996 Alas. LEXIS 33, 1996 WL 170554, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rooney-v-rooney-alaska-1996.