Vachon v. Pugliese

931 P.2d 371, 1996 Alas. LEXIS 130, 1996 WL 651324
CourtAlaska Supreme Court
DecidedNovember 8, 1996
DocketS-7264
StatusPublished
Cited by74 cases

This text of 931 P.2d 371 (Vachon v. Pugliese) 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
Vachon v. Pugliese, 931 P.2d 371, 1996 Alas. LEXIS 130, 1996 WL 651324 (Ala. 1996).

Opinions

EASTAUGH, Justice.

I. INTRODUCTION

Linda Vachon appeals orders awarding custody of her daughter, Jeana Pugliese, to Robert Pugliese and denying her motion for reimbursement of past child support. We considered this appeal on an expedited basis and on August 6, 1996, issued an order reversing the custody award and remanding for entry of an order granting custody to Linda. This opinion discusses the reasons for that order. It also addresses the non-custody issues.

II. FACTS AND PROCEEDINGS

A. Facts

Robert and Linda met in 1979 in Massachusetts. At that time Linda lived in Massachusetts and Robert lived in Alaska. They lived together in Alaska from 1986-87 and 1990-93. Linda became pregnant soon after she moved to Alaska in 1990. After Jeana was bom on March 7, 1991, Linda and Jeana moved in with Robert and the parties lived together in Fairbanks until September 1993. Robert and Linda never married.1

In September 1993 Linda moved out of Robert’s home, taking Jeana with her. After Linda and Jeana moved out, Robert did not [374]*374see Jeana for about six weeks. Eventually Robert began visiting Jeana once or twice a week. In September 1993 Robert began paying child support of $300 a month. The parties did not seek or obtain a court order regarding custody, visitation, or support, and formalized no agreement about these issues.

Linda moved with Jeana to Sharon, Massachusetts, in June 1994. When Linda and Jeana left Alaska, Linda did not tell Robert that they were leaving or immediately inform him of their whereabouts. Linda testified that she left Alaska in this manner because Robert had been stalking her and she was afraid for her and Jeana’s safety. A week or two after leaving Alaska, Linda called Robert at work. When Robert answered, Jeana told him that she did not live in Alaska anymore. Suspecting that Linda was either at her mother’s home or at her sister’s home, Robert contacted Linda at her sister’s home. Robert testified that he continued to try to talk to Linda at least once a week, sometimes twice a week. Robert alleges that Linda “would not discuss anything with him.”

B. Proceedings

On September 12, 1994, Robert petitioned the superior court to establish paternity, custody, visitation, and support, requesting that he be granted sole legal and primary physical custody of Jeana. Robert also moved for temporary orders requesting, inter alia, joint legal and physical custody and visitation. On November 21 Judge Richard D. Saveli ordered Linda to return Jeana to Alaska for visitation with Robert within seven days. On November 23 Robert notified Linda that he had purchased Jeana an airline ticket for a December 4 Massachusetts departure and a January 5 return. On November 28 Linda petitioned the Norfolk Division Probate and Family Court in Massachusetts for a temporary order. On the same day that court granted Linda temporary custody of Jeana and issued a temporary order asserting jurisdiction over Jeana for all matters “including, but not limited to custody, visitation and child support.” The Massachusetts court set the matter for a December 12 hearing.

On December 2 Linda moved in the Alaska court to stay or vacate the November 22 order pending resolution of the jurisdictional issues between the Alaska and Massachusetts courts. Linda asked for expedited consideration due to the visit scheduled for December 4. Following a December 2 hearing, Judge Niesje J. Steinkruger, sitting in Judge Saveli’s absence, declined to stay or vacate the November 22 order. Linda did not allow the scheduled visit to occur.

On December 7 Linda filed a motion requesting that Alaska decline jurisdiction. On December 12 Judge Saveli, without argument or written opposition from Robert, held that Alaska had jurisdiction, and ordered that visitation take place. Thereafter, Robert had visitation with Jeana in Alaska from December 15 to January 14. Robert moved for another month-long visit, and on March 30 the court ordered a second visitation “for a [three] week period to be chosen” by Robert.

Following a four-day trial in May and June, the court issued oral findings and conclusions awarding primary physical custody to Robert so long as the parties lived in separate communities, and shared physical custody if Linda moved back to Alaska. The superior court awarded Linda visitation in Alaska as “frequently as possible,” and held that Linda should have at least two two-week periods of visitation in Massachusetts in the upcoming year, with each party bearing the cost of one visit.

The court’s oral and written findings discredited Linda’s credibility and completely rejected her testimony regarding domestic abuse, stalking, and her fear of Robert. The court found that Linda’s actions in moving to Massachusetts would constitute custodial interference under Strother v. State, 891 P.2d 214 (Alaska App.1995), and that “[e]xcept for [Linda’s] actions in interfering with [Robert’s] relationship with Jeana, both parents have demonstrated the willingness to meet Jeana’s physical, emotional, mental and religious needs.” The court ordered Linda to pay $50 per month in child support, and denied her request for back child support because it concluded she had failed to meet her burden of proof under Matthews v. Matthews, 739 P.2d 1298, 1299 (Alaska 1987).

[375]*375Linda appeals from the custody award and the denial of her claim for child support.2

III. DISCUSSION

A. Standard of Review

Trial courts are vested with broad discretion in making child custody determinations. Gratrix v. Gratrix, 652 P.2d 76, 79 (Alaska 1982). “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.” Id. at 79-80 (citing Horutz v. Horutz, 560 P.2d 397, 399 (Alaska 1977)). We have held that

while “great weight must be accorded to the trial judge’s experience and to his evaluation of demeanor testimony,” his discretion is not unlimited. On review we must determine whether that discretion has been abused, perhaps by assigning too great a weight to some factors while ignoring others, perhaps by elevating the interests of one of the parties to the dispute above that of the child, perhaps by making a clearly erroneous finding with respect to some material issue, or perhaps in some other manner.

Id. at 80 (quoting Horton v. Horton, 519 P.2d 1131, 1132 (Alaska 1974) (footnote omitted)). We review fact findings under the standard of clear error. McDaniel v. McDaniel, 829 P.2d 303, 305 (Alaska 1992). We apply our independent judgment to questions of law, adopting “the rule of law that is most persuasive in light of precedent, reason and policy.” Brooks v.

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Cite This Page — Counsel Stack

Bluebook (online)
931 P.2d 371, 1996 Alas. LEXIS 130, 1996 WL 651324, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vachon-v-pugliese-alaska-1996.