McCLURE v. SWEARINGEN, S-11372 (Alaska 6-29-2005)
Supreme Court No. S-11372.Supreme Court of Alaska.
June 29, 2005.
Appeal from the Superior Court of the State of Alaska, Fourth Judicial District, Fairbanks, Charles R. Pengilly, Judge. Superior Court No. 4FA-03-0409 CI.
Appearances: Steve L. Elliott, Hall and Elliott Attorneys at Law, P.C., Fairbanks, for Appellant.
Zane D. Wilson, Cook Schuhmann Groseclose, Inc., Fairbanks, for Appellee.
Before: Bryner, Chief Justice, Matthews, Eastaugh, Fabe, and Carpeneti, Justices.
MEMORANDUM OPINION AND JUDGMENT[fn*] 1. Wanda McClure appeals the superior court’s award of sole legal custody and primary physical custody of her son, Jordan, to Troy Swearingen, Jordan’s father. She challenges several of the court’s factual findings and alleges that the court abused its discretion in weighing the best-interests-of-the-child factors and in making its custody award.
2. Jordan was born to McClure and Swearingen in Idaho in 1999. McClure and Swearingen separated eight months after the family moved to Delta Junction in February 2002. The superior court initially ordered the parties to share custody of Jordan in a week-on, week-off arrangement.[fn1]
3. About six months later the parties filed motions to modify the custody award. The superior court heard two days of evidence and awarded sole legal and primary physical custody of Jordan to Swearingen.
4. McClure appeals the superior court’s factual findings that: (a) Swearingen was in a more stable living situation than McClure and more capable of meeting Jordan’s needs; (b) both parties used inappropriate corporal punishment; (c) it was unable to determine if Jordan was a special needs child; and (d) the shared custody arrangement was extremely harmful to Jordan.
5. The evidence established that Swearingen was in a long-term committed relationship, had steady employment, and had purchased a house in Delta Junction. McClure, conversely, was unsure of her future employment and living situation. There was extensive testimony on corporal punishment used by both parents and conflicting testimony on Jordan’s alleged developmental delay. The child custody investigator testified that the shared custody arrangement “rocked [Jordan’s] world,” and multiple witnesses confirmed Jordan’s negative reaction.
6. We review the superior court’s factual findings for clear error.[fn2] A finding is clearly erroneous if, after reviewing the entire record, we are left with a definite and firm conviction that a mistake has been made.[fn3] McClure’s contentions squarely raise questions about how genuine factual disputes in this case should be resolved. The superior court stated that this was “a very close decision on the facts” and “a very difficult” case. There was factual support for each of the superior court’s findings. We cannot say that the superior court’s findings were clearly erroneous.
7. McClure also argues that the superior court abused its discretion in weighing the best-interests-of-the-child factors and by awarding sole legal custody and primary physical custody of Jordan to Swearingen. A trial court abuses its discretion when it considers improper factors, fails to consider a mandatory factor, or gives disproportionate weight to particular factors while ignoring others.[fn4]
8. The superior court found that “the parties have been unable to agree on any issue relating to Jordan’s mental, emotional, and physical health” and that they would be unlikely to agree in the future. There was substantial evidence showing that the parties regularly disagreed about Jordan’s care, in particular Jordan’s counseling needs. Multiple witnesses also testified that McClure spoke negatively about Swearingen to Jordan. Although the legislature has indicated a preference for shared legal custody,[fn5] it is not an abuse of discretion for the superior court to award sole legal custody to one parent when the parents cannot cooperate.[fn6]
9. McClure also claims that the superior court ignored what she calls her “amazing efforts . . . to avail herself of every possible counseling and parenting service offered by OCS.” But the custody investigator was unconvinced McClure’s participation in the OCS classes had improved her parenting and testified that McClure still had “a ways to go.” Substantial evidence showed that the shared physical custody arrangement was harmful to Jordan. The superior court therefore did not clearly err in failing to find that McClure had made “amazing efforts,” nor was it an abuse of discretion for the superior court to decline to continue the shared custody arrangement and for it to grant primary physical custody to Swearingen.
10. The superior court’s findings show that it considered the required statutory “best interests of the child” factors and there is no indication that the court improperly weighed these factors. It was therefore not an abuse of discretion to award primary physical custody to Swearingen.
11. The judgment of the superior court is AFFIRMED.
[fn*] Entered pursuant to Appellate Rule 214. [fn1] This custody award resulted from opposing domestic violence claims and was to continue for six months. [fn2] G.C. v. State, Dep’t of Health Soc. Servs., Div. ofFamily Youth Servs., 67 P.3d 648, 650 (Alaska 2003). [fn3] Id. at 650-51. [fn4] Hamilton v. Hamilton, 42 P.3d 1107, 1111 (Alaska 2002). [fn5] The legislature, in enacting chapter 88, SLA 1982, expressed this intent: “[I]t is in the public interest to encourage parents to share the rights and responsibilities of child rearing.” Ch. 88, § 1(a), SLA 1982. Chapter 88 amended AS25.20.060. See also Bell v. Bell, 794 P.2d 97, 99 (Alaska 1990). [fn6] Ulsher v. Ulsher, 867 P.2d 819, 823 n. 6 (Alaska 1994) (“[I]n view of the lack of cooperation between the parties on child rearing decisions, we conclude that the superior court did not abuse its discretion in awarding sole legal custody.”).