STONE v. STONE, S-13137 (Alaska 6-3-2009)

WILLIAM D. STONE, Appellant, v. TIA STONE, Appellee.

Supreme Court No. S-13137, No. 1341.Supreme Court of Alaska.
June 3, 2009.

NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d). Accordingly, this memorandum decision may not be cited for any proposition of law or as an example of the proper resolution of any issue.

Appeal from the Superior Court of the State of Alaska, Third Judicial District, Palmer, Beverly W. Cutler, Judge. Superior Court No. 3PA-06-00129 CI.

Lanae Austin, Anchorage, for Appellant. M. Scott Broadwell, Davis Wright Tremaine LLP, Anchorage, for Appellee.

Before: Fabe, Chief Justice, Eastaugh, Carpeneti, and Winfree, Justices. [Matthews, Justice, not participating.].

MEMORANDUM OPINION AND JUDGMENT[fn*]I. INTRODUCTION
This appeal arises out of the superior court’s decision to award custody of the son of William and Tia Stone to Tia. William argues that the superior court abused its discretion when it put supplemental findings on the record in open court without prior notice to the parties, that it erred in finding that Tia was better able to provide for the child’s emotional and social needs, and that it exhibited gender bias in awarding custodyPage 2
to Tia. Because the superior court did not err by making additional supplemental findings and placing them on the record several days after the divorce and custody trial, because the superior court’s decision to award Tia custody was supported by the evidence at trial, and because the superior court’s findings, while unfavorable to William, were not biased against William but instead related to the specific best interest factors required in AS 25.24.150(c), we affirm the superior court’s judgment in all respects.

II. FACTS AND PROCEEDINGS A. Facts

William and Tia Stone were married in Wasilla in July 2002. Their son, William, Jr., was born in 2003. After William, Jr.’s birth, Tia was his primary caregiver for the first two years of his life.

In July 2004 William was arrested for assaulting Tia. William pleaded no contest to the charges and was ordered to complete a domestic violence intervention program within nine months. William and Tia subsequently separated, and William, Jr. remained with Tia. The Stones later reconciled and remained together for a year. In January 2006 Tia was charged with domestic violence. She pleaded no contest and completed a domestic violence intervention program. The couple again separated and William moved in with his parents. At the time of trial, William had been living with William, Jr. at his parents’ house in Wasilla for two years.

B. Proceedings

On May 17, 2006, William filed for divorce, requesting interim child custody and child support. In his request for interim custody, William highlighted Tia’s conviction for domestic violence and requested that she be permitted only supervised visitation with William, Jr. But William did not inform the court about his own 2004 conviction for domestic violence.Page 3

On November 17, 2006, Superior Court Judge Beverly W. Cutler awarded William interim custody of William, Jr. and ordered that Tia’s visitation be supervised. The superior court noted its concern about Tia’s history of domestic violence. On November 27, 2006, the superior court ordered a custody investigation.

Over the course of the next fifteen months the parties communicated about their son, but their conversations were sometimes acrimonious. William claims that Tia “had very little visitation with William, Jr.” during this period, while Tia claims that William and his family “permitted [Tia] to see very little of her son” during the time that the interim custody order was in effect. Over the next year, both parties filed a variety of motions. Tia continued to appear pro se and filed a motion to modify interim custody, which was denied by the court.

On May 7, 2007, the custody investigator issued her report, in which she analyzed each of the factors bearing on William, Jr.’s best interests. The custody investigator found that love and affection existed between the child and each of his parents, and that there were “concerns” about both parents’ capability of meeting the child’s needs. But the report also pointed out that throughout the course of the custody investigation, William “focus[ed] on making [Tia] look bad.” The investigator concluded that until William resolved his feelings about Tia, he would have difficulty co-parenting William, Jr. The investigator also noted the extremely negative attitude toward Tia displayed by William’s father, Joel Stone, with whom William and William, Jr. lived. The report quoted Joel’s characterization of Tia as a “biological donor,” an “incubator,” and “a 100% depraved monster that’s purely evil.” The custody report concluded by recommending that the custody arrangement be changed and that Tia be awarded sole legal and primary physical custody of William, Jr.Page 4

At trial, the superior court heard testimony from William and Tia, their witnesses, and the court-appointed custody investigator. At the conclusion of the trial, on February 6, 2008, the superior court awarded sole legal and primary physical custody to Tia and delivered oral findings, explaining its reasoning to the parties and discussing several factors that influenced its decision. On February 11, 2008, the superior court placed additional findings on the record, analyzing each of the nine best interest factors outlined in AS 25.24.150(c).

On April 16, 2008, William filed a motion to modify the custody arrangement and requested expedited consideration of his motion. William’s motion included affidavits to illustrate his claim of “horrific conditions” in Tia’s house. William charged that Tia was physically and sexually abusing William, Jr. Joel, William’s father, filed an affidavit claiming that in the two months after trial, Tia had subjected William, Jr. to a graphic and detailed list of acts of physical and sexual abuse. The superior court rejected the motion for expedited consideration, citing Joel’s “severe lack of credibility” based on the recently completed trial. Tia opposed the underlying motion and filed a cross-motion to strike William’s and Joel’s affidavits and for an award of attorney’s fees against William for bringing a bad faith motion.

On May 12, 2008, the superior court entered the decree of divorce and placed its written findings of fact and conclusions of law on record. The superior court concluded that Tia was “a loving mother who cares deeply for her child and will provide him with a loving, safe, and secure home.” The court further found that Tia had “made significant efforts to obtain visitation with her son during the period when [William] had been granted interim custody” and that her efforts had been “inhibited in part by lack of legal counsel and a lack of familiarity with the [c]ourt system.” The superior court noted that Tia had “learned from her past mistakes and ha[d] demonstrated the level of maturityPage 5
and responsibility required to undertake the sole legal and primary physical custody of [William, Jr.]”

The superior court also remarked that though William had provided a secure home for William, Jr. for the preceding two years, “the home environment [was] unsatisfactory in other critical respects,” concluding: “[m]ost importantly, the [c]ourt agrees with the [c]hild [c]ustody [i]nvestigator that the attitudes of [William] and his father [Joel] regarding [Tia] are extremely negative and are damaging to the child’s ability to develop a close relationship with Tia.” The superior court also concluded that it would be harmful to William, Jr. to “continue to reside in the same residence as Joel” and ordered that William, Jr. was to have only supervised visitation with his paternal grandfather.

William appeals.

III. STANDARD OF REVIEW
The trial court is “vested with broad discretion in child custody decisions”[fn1] and we will not set aside a trial court’s custody determination “unless the record shows that its controlling findings of fact are clearly erroneous or the court abused its discretion.”[fn2] A finding of fact is clearly erroneous only when a review of the entire record leaves us with a definite and firm conviction that the trial court made a mistake.[fn3] We find an abuse of discretion in custody determinations when the trial court “fails toPage 6
consider statutorily mandated factors, assigns too much weight to some of the factors, or considers improper factors.”[fn4]

IV. DISCUSSION
William makes three primary arguments in this appeal. First, he argues that the superior court abused its discretion when it placed supplemental findings on the record several days after the end of the trial without giving both parties notice of its intent to do so. Second, William argues that the superior court abused its discretion in finding that Tia was better able to provide for William, Jr.’s emotional and social needs.[fn5] Finally, William contends that the superior court exhibited an “obvious gender bias” and favored Tia in the custody determination “because of her youth and because she [is] a woman.” William also argues that the superior court was biased against him because the court felt that he had not been a good husband. These arguments are addressed in turn.

A. The Superior Court Did Not Abuse Its Discretion when It MadeSupplemental Findings on February 11, 2008.

Following a two-day trial, the superior court placed its findings on the record on Wednesday, February 6, 2008. The court again went on record the following Monday, February 11, 2008, to make supplemental findings on the best interest factors, as required under AS 25.24.150(c). The superior court explained its purpose before making the additional findings:

[F]or counsel’s information, the court intended to do this the very next day after the hearing and I just never could do itPage 7
because we had this little flood in the courthouse and then things were pretty discombobulated all day Friday. So I’m just now getting back to this and I do apologize. . . . I need to do this before it gets away from us.

The court file’s log notes indicate that neither the parties nor their counsel were present. Three months later, the superior court entered the decree of divorce and its findings of fact and conclusions of law.

William claims that the court erred in holding a “separate hearing” on February 11 at which he was not present. William contends that because he had “a right to be present at the hearing and participate in the process,” the superior court’s action “amounted to a closed hearing” and was thus an abuse of discretion.

But because the superior court’s action in placing additional findings on the record did not constitute a “hearing,” William’s argument is without merit. The superior court heard no additional evidence, nor did it alter any terms of its prior ruling. Instead, as Tia notes, the trial judge added supplemental findings to the record, analyzing each of the child custody factors while the evidence was still fresh in her mind. And as Tia notes, William had no more right to be present during the superior court’s addition to the record than he would have had the right to attend the court’s private revisions to a formal written opinion. Indeed, we commend the superior court’s quick action and effort to avoid delay by making its supplemental findings only days after the end of trial.Page 8
B. The Superior Court Did Not Abuse Its Discretion when It Found thatthe Best Interests of the Child Required that Primary Custody Be Awardedto Tia.

A trial court must determine custody in accordance with the best interests of the child by considering the factors set out in AS 25.24.150
(c).[fn6] Here, the superior court made specific findings on all of the nine statutory factors. The court started by finding that both William and Tia were “capable of exercising the basic responsibilitiesPage 9
to meet the physical needs” of William, Jr. and that both parents were capable of meeting the child’s educational needs under subsection (1). But the superior court found Tia to be more capable of providing for William, Jr.’s emotional and social needs, stating: “it . . . appear[s] that both parents are not on the same footing when it comes to promoting a loving, open relationship with the other parent. . . . [T]hat’s not being promoted by [William].”

The superior court proceeded through the remaining eight factors, and it found that both parents had an “equal desire” to meet William, Jr.’s needs and “both want very much to be the primary parent,” that William, Jr. was “not of sufficient age and capacity to form a preference” to live with one parent over another, and that there was “love and affection existing between the child and each parent.” In considering “the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity,” the superior court remarked that this factor would have weighed in William’s favor, except that William had created “a situation where [Tia] is really bashed negatively by the entire household and where [William, Jr.] is raised to think poor things of his mother.” The superior court cited to its previous finding that William did not appear willing to encourage a close relationship between William, Jr. and Tia. According to the trial court, the remaining statutory factors either did not apply to the case or did not favor one parent over the other.[fn7]Page 10
1. The superior court did not err in finding that Tia was better ableto provide for William, Jr.’s emotional and social needs.

William argues that the superior court erred when it found Tia to be the better parent to provide for William, Jr.’s emotional and social needs. He notes that he was the primary caregiver from the time he received primary physical custody in mid-November 2006 until the time of trial in early February 2008. William argues that Tia “had very little contact” with William, Jr. and “made very little effort” to see the child during the intervening time.

But at trial, Tammy Landlord, Tia’s mother, testified that “[Tia] made attempts to try to get in contact with William numerous, numerous times and she wasn’t allowed to see [William, Jr.]” In addition, the superior court heard testimony from Tia and the child custody investigator that Tia had made efforts to see her son.

As Tia notes, we have previously upheld a custody award “based on concerns over one parent’s demonstrated inability to encourage a healthy relationship between the other parent and [the] child.” In Hamilton v.Hamilton, we upheld the superior court’s custody determination even though the change of custody meant a shift in primary custody away from the children’s “lifelong primary parent.”[fn8] Similarly, in Dingeman v.Dingeman, we upheld a custody award after finding that a father’s animosity towards a mother prevented him from fostering an open relationship between the mother and the child.[fn9] In Dingeman, we found multiple examples in the record of the father’s animosity towards the mother to support the trial court’s conclusion.[fn10]Page 11

In this case, the superior court found that William mischaracterized Tia’s lack of visitation with William, Jr.: “I think it really does appear that [Tia] very much tried to make sure that she was as primary a part of [William, Jr.’s] life as [William was] and [William] pretty much just cut her out.” As Tia maintains, the superior court also recognized that William, Jr. had lived with William and his parents for nearly two years but that its concern over the negative environment in William’s home “outweighed any desire to maintain continuity.” Because the superior court heard testimony from several witnesses that Tia had made frequent efforts to see her son, and because we have previously held that concerns over one parent’s ability to foster a healthy relationship between the child and the other parent can outweigh concerns over stability, the superior court did not err in finding Tia to be better able to provide for William, Jr.’s emotional and social needs.

2. The superior court did not abuse its discretion when it discussedthe fact that William lived with his parents.

William next argues that the superior court abused its discretion when it was “ultra critical of the fact that [he] still lived with his parents.” William cites an exchange at trial between Judge Cutler and Joel, William’s father, on child care arrangements in their household and William’s plans to rent his own apartment. William contends that the trial court’s consideration of “the fact that [William] still lived with his parents and [its attempt] to bring out the possible negativity in that arrangement was an improper factor to consider in determining child custody.”

Yet as Tia persuasively maintains, the superior court was legitimately concerned with William’s continued residence with his parents because of the hostility displayed by William’s father towards Tia. Joel’s comments and attitude towards Tia raised significant concerns for the superior court regarding whether William’s continued custody of William, Jr. would be in the child’s best interests. The custody investigatorPage 12
testified that she did not think that Joel’s home was “an environment that would support or encourage William Jr.’s relationship with his mother,” and the superior court heard testimony from Joel confirming that he had called Tia a “biological donor,” “an incubator,” and a “depraved monster.”

The superior court found that even though William had provided “a secure home environment for the child, the home environment [was] unsatisfactory in other critical respects.” The superior court agreed with the child custody investigator that the attitudes of William and his father regarding Tia were extremely negative and were damaging to the child’s ability to develop a close relationship with his mother. The superior court concluded that Joel’s actions were so harmful that William, Jr. should have only supervised visitation with his grandfather.

We have recognized that a trial court may consider and accord weight to a parent’s living arrangement.[fn11] Because the superior court heard testimony that William displayed an extremely negative attitude towards Tia and that William’s “continuing hostility towards Tia” was “due in part to the influence of his father, Joel,” it was not an abuse of discretion for the court to consider the fact that William lives with his father in determining that William, Jr.’s best interests required that sole legal and primary physical custody be awarded to Tia.

C. There Is No Evidence that the Superior Court Was Biased AgainstWilliam.

William claims that the superior court abused its discretion, arguing that it had an age bias or an “obvious gender bias” in favor of Tia and was biased againstPage 13
William because it “did not feel that he had been a good husband.” These arguments have no merit.

1. The superior court was not biased against William because of hisgender or his age.

William claims that the superior court exhibited “obvious gender bias” against him requiring that we reverse and remand the custody determination. William notes that under Alaska law, courts are required to base their custody determinations on gender-neutral considerations, and he cites AS 25.20.060(b), which provides that “[n]either parent . . . is entitled to preference in the awarding of custody.”

To support his claim of bias, William cites several cases from California, Utah, and Texas in which state court decisions were set aside because of a judge’s apparent gender bias. William relies in part on Inre Marriage of Iverson, where a California appellate court reversed a trial court’s judgment upholding the validity of a premarital agreement because of the judge’s obvious gender bias.[fn12] In Iverson, the trial court judge referred to the wife as “lovely” and “a girl” who “[h]ad nothing going for her except for her physical attractiveness.”[fn13] The appellate court found the trial court’s language to be “plainly demeaning,” and concluded that even if the trial judge “harbored no direct bias” against the wife, his statements were not “[in] accord with recognizedPage 14
principles of fairness” and the “appearance of justice . . . [was] clearly absent.”[fn14] William likens this case to Iverson and argues that “Judge Cutler’s statements make it clear that she impermissibly based her ruling on . . . gender and upon [William’s] role as a husband.”

William’s claims of age and gender bias are without support. As noted by Tia, the history of the case demonstrates that the superior court did not favor her as a woman or because of her youth: the court initially issued an interim custody order that gave William primary custody for two years and denied Tia’s subsequent motion to modify that order. As we have previously cautioned, “judicial bias should not be inferred merely from [an] adverse rulin[g].”[fn15]
2. The superior court was not biased against William because of anypurported shortcomings as a spouse.

William also argues that the superior court’s “misplaced emphasis on [his] purported shortcomings as a spouse” are evidence that the superior court’s “own personal assessment of [William’s] qualifications as a husband improperly influenced [its] decision to grant custody to Tia” and created a record that “reveal[ed] a veritable litany condemning and impugning [William’s] character.” William likens this case to Horutz v.Horutz, in which the trial court stated the mother was “a person of bad character” and “a poor and unfit mother.”[fn16] In Horutz, the trial court entered findings regarding the manner in which the mother had raised her then-seventeen-year-old daughter, remarking that the girl “ha[d] been virtually ruined by various aspects of [her mother’s] pattern ofPage 15
life.”[fn17] We concluded that the trial court may have given too much weight to the parties’ private conduct “without determining what impact such conduct had on the parties[‘] parental relationship to [their child].”[fn18]

But William’s reliance on Horutz is misplaced. Here, unlike in Horutz, the trial court’s statements, while unfavorable towards William, went to the specific best interest factors required in AS 25.24.150(c). InHorutz, we were concerned that testimony about parental conduct was unrelated to the parents’ relationship with their child.[fn19] But in this case, the testimony introduced at trial was not “marital trivia”[fn20] and instead went to the core of William’s ability to support a meaningful relationship between William, Jr. and Tia.[fn21]

As we stated in Horutz, “[i]n sifting and weighing the often emotionally charged and diametrically opposed testimony of the parties, . . . the trial court’sPage 16
resolution of custody issues [must] be determined by the paramount criterion of the best interests of the child.”[fn22] While unfavorable to William, the superior court’s findings were not a personal attack on him but instead went to the specific best interests factors required in AS 25.24.150(c). Thus, the superior court did not abuse its discretion by awarding custody of William, Jr. to Tia.

V. CONCLUSION
Because the superior court did not err by making supplemental findings on the record several days after the divorce and custody trial, because the superior court’s custody decision to award Tia custody was supported by the evidence at trial, and because the superior court’s findings, while unfavorable to William, were not biased against William but instead related to the specific best interest factors required in AS 25.24.150(c), we AFFIRM the superior court’s judgment in all respects.

[fn*] Entered pursuant to Appellate Rule 214.

[fn1] Chesser v. Chesser-Witmer, 178 P.3d 1154, 1156 (Alaska 2008) (quoting Evans v. Evans, 869 P.2d 478, 479 (Alaska 1994)).

[fn2] Id. (quoting Borchgrevink v. Borchgrevink, 941 P.2d 132, 134
(Alaska 1997)).

[fn3] Money v. Money, 852 P.2d 1158, 1161 (Alaska 1993).

[fn4] J.L.P. v. V.L.A., 30 P.3d 590, 594 (Alaska 2001) (citation omitted).

[fn5] William also argues that the superior court erred in finding that Tia was better able to provide for William, Jr.’s physical needs. The superior court actually found that both parties were capable of providing for William, Jr.’s physical needs, and it did not express an opinion as to which party might be better at doing so. William’s argument regarding this alleged finding is therefore without merit.

[fn6] Blanton v. Yourkowski, 180 P.3d 948, 951 (Alaska 2008). AS 25.24.150
(c) outlines the nine factors:

(1) the physical, emotional, mental, religious, and social needs of the child;

(2) the capability and desire of each parent to meet these needs;

(3) the child’s preference if the child is of sufficient age and capacity to form a preference;

(4) the love and affection existing between the child and each parent;

(5) the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;

(6) the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child . . . ;

(7) any evidence of domestic violence, child abuse, or child neglect . . . or a history of violence between the parents;

(8) evidence that substance abuse by either parent or other members of the household directly affects the emotional or physical well-being of the child;

(9) other factors that the court considers pertinent.

[fn7] The superior court found no evidence of child abuse or child neglect under subsection (7), though it commented on the history of violence between the parents, finding that “the episode of domestic violence where [Tia] slapped [William] once certainly does not justify especially in light of his domestic violence anything like the sort of hate campaign that’s going on here.” The court found “no competent evidence that either [William] or [Tia] engaged in domestic violence on more than one occasion.”

[fn8] 42 P.3d 1107, 1116 (Alaska 2002).

[fn9] 865 P.2d 94, 98 (Alaska 1993).

[fn10] Id.

[fn11] See Chesser-Witmer v. Chesser, 117 P.3d 711, 715-16 (Alaska 2005) (holding that evidence in a custody modification action was sufficient to support a finding that the mother’s home business was a “concern” for the child).

[fn12] 11 Cal. App. 4th 1495, 1502 (Cal.App. 1992).

[fn13] Id. at 1498. The trial judge went on to question why the husband would have asked the wife to marry him when they had already been living together, remarking “why, in heaven’s name, do you buy the cow when you get the milk [for] free[?] . . . Marriage is . . . a deprivation of his freedom. He’s got everything that he would want out of a relationship with none of the obligations.” Id. at 1499.

[fn14] Id. at 1501 (emphasis omitted).

[fn15] Tillmon v. Tillmon, 189 P.3d 1022, 1027 n. 13 (Alaska 2008).

[fn16] 560 P.2d 397, 398 (Alaska 1977).

[fn17] Id.

[fn18] Id. at 401.

[fn19] Id.

[fn20] Id. at 399 (“Much of the testimony which was adduced by the parties involves marital trivia and fails to focus on the real issues which needed to be addressed. . . .”).

[fn21] The trial court did not discuss the fact that William lived with his parents to belittle him. Instead, it expressed its reservations about the housing arrangement within the context of its effect on William, Jr.:

[A]nd I have a hard time saying this [William] and I don’t mean to say it in a negative way, but . . . it also seems that in some ways you’ve let yourself become even maybe less functional as a parent[,] and not more functional[,] by sort of using your own parents as a crutch, which isn’t bad for a short period of time . . . [b]ut it doesn’t seem to me that it’s having a really good effect on [William, Jr.]

[fn22] 560 P.2d at 399.