Yelena R. v. George R.

326 P.3d 989, 2014 WL 2573345, 2014 Alas. LEXIS 105
CourtAlaska Supreme Court
DecidedMay 23, 2014
Docket6912 S-15042
StatusPublished
Cited by26 cases

This text of 326 P.3d 989 (Yelena R. v. George R.) 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
Yelena R. v. George R., 326 P.3d 989, 2014 WL 2573345, 2014 Alas. LEXIS 105 (Ala. 2014).

Opinion

OPINION

STOWERS, Justice.

I. INTRODUCTION

Yelena R. and George R. 1 were involved in an on-again, off-again relationship for more than a decade and have two children together. Yelena accused George of sexually assaulting her in May 2011 while they were living together in Kodiak. After the Kodiak magistrate found Yelena's testimony unpersuasive and denied her request for a long-term domestic violence protective order, Yelena took the children to Massachusetts without notifying George. A Massachusetts court ordered the children to be returned to Kodiak and this custody case ensued. After a custody trial, the superior court granted sole legal and primary physical custody of the children to George and ordered supervised visitation between Yelena and the children. Yelena now appeals the custody order and visitation restrictions.

This appeal requires us to consider whether the superior court had jurisdiction to make final custody decisions regarding the children, and, if it did, whether the superior court properly: (1) declined to find a history of domestic violence by George; (2) awarded custody to George; and (8) required supervised visitation. We conclude that the superior court had jurisdiction, properly declined to apply AS 25.24.150(g)'s domestic violence presumption, - adequately considered AS 25.24.150(c)'s "best interest" factors, and made no clearly erroneous factual findings; thus it did not abuse its discretion by awarding custody of the children to George. It was error for the superior court to require supervised visitation without making adequate findings to support the visitation restrictions and by failing to establish a plan for Yelena to achieve unsupervised visitation. It was also an abuse of discretion to delegate to George the authority to end the supervision requirement. We affirm the superior court's award of custody to George, but re *993 mand for further proceedings on the issue of Yelena's visitation.

II. FACTS AND PROCEEDINGS

A. Facts

Yelena and George married in October 2000 after Yelena became pregnant. George and Yelena's son, Isaac, was born in January 2001. George joined the Coast Guard in late 2000, and the family moved to California shortly after Isaac was born.

Yelena testified that about five months after they were married, a pattern of reciprocal physical abuse began between her and George. 2 Yelena said that both of them committed acts of domestic violence and were arrested early in their relationship. Yelena was arrested and charged with inflicting corporal injury on a spouse and battery on a spouse in September 2001 in California 3 She entered a nolo contendere plea and was sentenced to ten days in jail and one year of probation.

George filed for divorce in 2002, and the couple divorced in November 2004 in California. The California court ordered shared legal custody of Isaac and granted primary physical custody to George, with regular visitation to Yelena. The court also granted George's request to move with Isaac from California to North Carolina for work. Despite their divorce, Yelena and George continued their relationship and lived together on and off between 2004 and 2011.

Yelena became pregnant with their daughter Amy in 2005. Yelena alleged that George pushed her down the stairs because he did not want her to have the baby. Amy was born in early 2006. George was then stationed in Massachusetts, and George and Yelena moved back in together and lived with George's mother. Yelena suggested that George's family abused Yelena and Isaac during this time.

In July 2007 while they were living in Massachusetts, Yelena reported that after she found earrings in their bed and placed them in George's hand, he assaulted her by repeatedly punching her in the back while Amy lay in the bed next to her. George told police that he and Yelena had been arguing for several days and that she dropped Amy on him while he was sleeping and then assaulted him by sitting on him, hitting him, and swinging an object at him. George was arrested and charged with assaulting Yelena. Yelena went to Cape Cod Hospital in Hyan-nis later that day, where she reported being punched in the back. She was diagnosed as having a subcapsular hematoma on the left kidney. Yelena voluntarily left the hospital against medical advice.

Yelena moved back in with George three or four months after the alleged assault, around November 2007. On November 8 George was counseled in writing by his Coast Guard commanding officer to reconsider living with Yelena because of the multiple reported altercations between them. George was also counseled that he should not be living with Yelena because she admitted to being "a habitual user of marijuana."

In April 2008 the trial court in Barnstable, Massachusetts entered a stipulated order in which Yelena and George agreed to share legal and physical custody of the children. In May 2008 a Barnstable district court judge dismissed the assault charges against George arising from the July 2007 incident.

From early 2008 until 2010, Yelena and George did not live together but did spend significant time together. During that time George took care of the children most weekends and evenings. George testified that Yelena would not spend her time off with the children, suggesting that she would instead "socialize" and often had a "hangover."

In June 2010, the Coast Guard transferred George to Kodiak. Yelena said that their relationship and co-parenting were good in *994 the period leading up to when George moved. Yelena quit her job around October and in early December moved to Kodiak with the children to live with George. Yelena obtained employment as a victim's advocate at the Kodiak Women's Resource and Crisis Center.

Isaac developed severe dental problems sometime before the move to Kodiak. George claimed that these problems were the result of Yelena's neglect, and that he immediately dealt with them when Isaac arrived in Kodiak. George said that he first learned about the dental issues shortly before Yelena moved to Kodiak, and that he told her Isaac should have been seen by a dentist before moving. George explained that he immediately took Isaac to the dentist and a series of visits occurred before Isaac was referred to specialists in Anchorage. In April 2011 pediatric dentists at Joint Base Elmendort-Richardson diagnosed Isaac as having a "cystic lesion that was grossly disfiguring and causing dental and maxillofacial deformity." The lesion was removed in June 2011. The chief of pediatric dentistry stated that "prompt recognition ... could have significantly lessened the facial deformity and subsequent need for future orthodontic treatment."

Yelena testified that on the morning of May 25, 2011, George came home from work and began kissing her and making sexual advances. 4 She refused, stating "[this isn't worth it ... I'm sleeping with someone else." She further told George "no," "stop," and "please don't," but he continued to sexually assault her.

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Cite This Page — Counsel Stack

Bluebook (online)
326 P.3d 989, 2014 WL 2573345, 2014 Alas. LEXIS 105, Counsel Stack Legal Research, https://law.counselstack.com/opinion/yelena-r-v-george-r-alaska-2014.