Borchgrevink v. Borchgrevink

MATTHEWS, Justice,

dissenting.

In cases tried to the court without a jury, the court is required to “find the facts specially and state separately its conclusions of law thereon.” Alaska R. Civ. P. 52(a). Child *142custody questions are to be determined “in accordance with the best interests of the child....”1 What the best interests of the children require is thus the ultimate finding to be made by a trial court in a child custody case. In reaching the ultimate finding, the trial court must consider a number of statutorily mandated factors, and findings concerning relevant statutory factors must be made. Finally, findings relating the relevant statutory factors to the court’s ultimate best interests finding should be made. Such findings integrate the relevant statutory factors into the court’s best interests determination and explain why the court has decided that the best interests of the children are served by the custody determination which it has made.

In the present case, the trial court did not make an ultimate finding that it is in the best interests of the children that Kimberly be their primary custodian rather than Rob, and did not make integrative findings explaining how the relevant statutory factors would justify a determination that it is in the best interests of the children to be in the primary custody of Kimberly.

We have identified a number of purposes served by the requirement that trial courts make findings in judge-tried cases. This requirement (1) “aids the trial judge’s analytical process”; (2) “may be relevant for collateral estoppel purposes”; (3) “aids the appellate court on review”; and (4) enables “the defeated party to determine whether the case presents a question worthy of consideration by the appellate court.”2 Of these, the first, third and fourth purposes are relevant here, and more should be said about them.

Written findings demonstrate that the trial court has asked and answered the questions that the law requires be asked and answered. In this way the findings facilitate appellate review. The absence of required findings indicates that the trial court has made a mistake of some sort. Required findings on a statutory standard such as children’s best interests may not have been made because the trial court may not have realized that the standard controlled the decision, or required findings may not have been made through oversight on the part of the trial court. It is also possible that required findings were made by the trial court mentally, but were not set down in writing.

Written findings also help the trial judge to reach an appropriate decision. They require that the controlling question be explicitly asked and answered and thus exert a discipline which should help to ensure that the decision is both logical and in compliance with legal requirements. This value exists independent of appellate review.

Finally, dispensing with the findings requirement necessarily changes the standard of review. Findings are reviewed for factual sufficiency — that is they are not to be overturned on appeal unless they are clearly er*143roneous. Alaska R. Civ. P. 52(a). Obviously, findings which are not made cannot be reviewed under this or any other standard. Judgments without findings — assuming they are to be reviewed rather than remanded for findings — can be reviewed. Judgments on the general verdict of a jury are examples. Such judgments are upheld if they are supportable under any set of facts in evidence. Note the difference between this standard and the standard applicable to findings made by a trial judge. In the judge-tried case it is for the trial judge to select among disputed facts. On appeal, only those disputed facts found by the trial judge are tested for factual sufficiency. In a jury trial, on the other hand, all the evidence must be reviewed to see if there is any evidentiary support for the judgment. The assumption of the appellate court is that all disputes concerning the facts have been resolved by the jury in a way which supports the judgment. This may not be what the jury actually did, but it is a necessary assumption given the impenetrability of jury deliberations. In a judge-tried case this assumption is not necessary, for the trial court’s findings should set out what has been found and what has been relied on. Using the assumption assigns the fact-finding responsibility of the trial court to the appellate court. In other words, the role of the appellate court in the judge-tried case is to review only what the trial court has found, not what the trial court might have found. Similarly, the appellant’s burden in the judge-tried case is to show that what was found was clearly erroneous, not that the judgment was unsupportable under any possible set of findings that might have been made.

Turning to this case, there is no demonstration that the trial court addressed the question as to whether the children’s best interests would be better served by having Kimberly rather than Rob as primary custodian. Based on the set of findings that we have before us we can only speculate as to whether the trial court actually decided this question.3 Similarly, requiring the trial court to make findings as to the connection, if any, between Rob’s past physical abuse of Kimberly, and the best interests of the children, would also focus the attention of the trial court on this critical question.4 Again, we can only speculate as to whether the trial court mentally made a finding on this question, and, if so, as to what it was.

Although no witness testified that the children’s interest will be better served in the primary custody of Kimberly rather than Rob because of Rob’s past domestic violence and controlling behavior, I assume that the trial court could have made such a finding based on a chain of inferences drawn from evidence which was partly disputed. Should the trial court then be affirmed on the basis of a finding which it might have made, but did not? In my view, the answer is no. Doing so is to use the jury trial standard of review — the appellate court affirms because there is evidence supporting the judgment. As noted, this effectively takes from the trial court the responsibility of selecting from among competing sets of facts which are supportable based on the evidence.

This court has previously reversed and remanded for further findings cases where *144trial courts have not made ultimate findings,5 and cases where trial courts have not made integrative findings.6 Here the trial court made neither ultimate findings nor integrative findings.

These failures cast doubt as to whether the court focused on the best interests of the children in awarding custody to the mother rather than the father, for if the court had decided this question it is reasonable to suppose that findings addressing it would have been made. Further, the lack of integrative findings leads one to wonder whether the court thought that it was sufficient merely to identify the more virtuous of the parents in an abstract sense, rather than to decide which parent would be the better custodian. On review we can only speculate as to whether the trial court made the findings which the law requires.

Finally, insofar as today’s opinion has inferred integrative findings based on the conclusion reached by the trial court, the opinion has effectively changed the standard of review from one which asks whether findings which have been made are supported by the evidence to one which asks whether there is any evidence which can support the judgment. This change bypasses the fact selection role of the trial court.

For these reasons I would vacate the judgment and remand this case for further findings.

. AS 25.24.150(c) and (d) provide:

(c) The court shall determine custody in accordance with the best interests of the child under AS 25.20.060 — 25.20.130. In determining the best interests of the child the court shall consider
(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 desire and ability of each parent to allow an open and loving frequent relationship between the child and the other parent;
(7) any evidence of domestic violence, child abuse, or child neglect in the proposed custodial household 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.
(d) In awarding custody the court may consider only those facts that directly affect the well-being of the child.

. The first three purposes are taken from Matter of D.C., 715 P.2d 1 (Alaska 1986), based on Merrill v. Merrill, 368 P.2d 546 (Alaska 1962). The fourth factor was identified in Rogge v. Weaver, 368 P.2d 810, 814 n. 7 (Alaska 1962).

. It is, of course, possible to say that the court implicitly found that it was in the best interests of the children to be in the primary custody of the mother because the court concluded that the mother should be the primary custodian. The reasoning underlying such an implication is that since the legal conclusion — that the mother be primary custodian — is dependent on an ultimate finding — that it is in the best interests of the children that the mother be primary custodian— it follows that the ultimate finding was made, otherwise the trial court erred. However, this type of implication, based on the presumption of judicial regularity, subverts the findings requirement by assuming rather than requiring compliance with the findings rule.

. In defense of the trial court I should say that the trial court's failure to draw a connection between the father’s prior history of domestic violence and the best interests question mirrored the evidence, which also contained no clear connection in this respect. The only expert who testified to what the future custodial arrangement should be was the state custody investigator who explained her report which recommended that the parties' present alternating week custody arrangement be continued. This arrangement had been in effect for two years, as of the time of trial, without violent incidents.

. See, e.g., Hakas v. Bergenthal, 843 P.2d 642, 643-44 (Alaska 1992); Matter of D.C., 715 P.2d 1, 1 (Alaska 1986).

. See, e.g., Bird v. Starkey, 914 P.2d 1246, 1248-49 (Alaska 1996)(reversal for failure to make findings as to why attendance at a particular school in child’s best interests); Lowdermilk v. Lowdermilk, 825 P.2d 874, 879 (Alaska 1992)(tri-al court abused its discretion in failing to make findings regarding a statutorily mandated factor at issue in the case; to make findings regarding the effect of that factor on the parties; and to make findings regarding that factor’s bearing on the ultimate issue in the case); Morel v. Morel, 647 P.2d 605, 607-08 (Alaska 1982) (reversal for failure to apply facts of case to statutory factors and make findings regarding the application of those facts).