Park v. Park

• FABE, Justice,

with whom CARPENETI, Justice, joins, dissenting.

I. INTRODUCTION

I disagree with the court’s conclusion that the superior court’s findings were inadequate. Both the superior' court’s findings and the trial record in this case reveal that the trial judge considered all relevant and disputed statutory factors and came to a sound custody decision. I therefore respectfully dissent.

II. DISCUSSION

As we articulated in Borchgrevink v. Bor-chgrevink,1 the standard of review for alleged inadequacy of a trial court’s factual findings is “whether they give a clear indication of the factors considered important by the trial court or allow us to determine from the record what considerations were involved.”2 We have emphasized in several of our prior custody decisions that, “[wjhile trial courts are encouraged to state all findings in their *212written orders, they are not required to do so as long as the basis for their decisions is clear from the record and thus susceptible to review.”3 This rule is in accord with that of other jurisdictions.4 In the end, we should not overturn a trial judge’s decision if he or she has made “a sound decision and no reason exists ... to overturn it.”5

Notwithstanding these well-established principles, the court today remands this case because the superior court “fail[ed] to mention” the factor of continuity8 and did not “fully explain its decision” in its findings.7 The court cites Borchgrevink in support of the notion that trial courts must “discuss” all relevant factors in its decision.8 But we stated in Borchgrevink that either the trial court’s findings “or” the record must clearly indicate which factors the trial court considered.9 This statement marked our reaffirmation of a long line of cases establishing that express findings are unnecessary if the record reveals which factors the court found determinative in awarding custody.10

The court also imposes the additional requirement on trial judges that they “look beyond the points specifically disputed by the parties.” 11 This language is in direct conflict with our long-standing recognition that trial courts need only make factual findings on the relevant statutory factors that are in dispute. “Facts which are either uncontested or irrelevant would not assist this court in assessing the propriety of an award. Mere recital of the statutory language helps no one.”12

Because of its failure to look to both the findings and the record for an indication of the factors considered by the trial judge, the court incorrectly concludes that the superior court’s findings were inadequate. I disagree with the court’s conclusion because I believe that Judge Michalski’s findings, along with the record, do in fact provide a “clear indication of the factors considered important by the trial court.”13 The primary factor analyzed by the superior court in its custody determination was Michael’s interference with visitation. The superior court noted in its written findings that Michael had refused to “freely provide for transportation and work with [Tara] in achieving visitation.” And Judge Michalski remarked at trial that Michael’s obstructionist behavior was the “preeminent[]” reason for his custody decision.

In Borchgrevink, we looked to the questioning and arguments at trial for further guidance as to which factors the court considered in its analysis.14 Here, the parties’ briefs and questions at trial indicate, in accord with the trial court’s findings, that the *213problem with visitation was the primary disputed factor in the case. The bulk of the testimony from both sides, including the testimony of Tara, Michael, the custody investigator, and the closing arguments of each side, centered around the visitation disputes. Michael’s trial brief also focused on the visitation disputes, along with a paragraph mentioning that the children should stay in Texas because they had been there for two years and were doing well in school. Michael similarly concentrated on the visitation disputes in his appellate brief. Accordingly, the trial court reasonably focused its attention upon the effect that the visitation disputes have had on the children, since that was the major issue litigated at trial.

The court today identifies only one statutory factor that it claims the superior court failed to consider adequately: the stability that the children might experience from remaining in Texas .15 But the trial court’s findings reveal that the court did consider stability as a factor. The court noted at trial the inevitable difficulty the children would have in leaving friends and family in Texas but ultimately viewed the visitation problems as more significant than the stability of the status quo in Texas:

[0]ne thing that does seem evident to me is that there is continuing difficulty ... for Mr. Park in ... freely providing for transportation and work with Ms. Park in achieving visitation ... and I think that that is preeminently a reason in choosing between which parent since I have to choose some parent and it’s not merely a reliance on status quo.

(Emphasis added.) The trial court also noted in its written findings how lucky the parents were that the children were not having more problems, given the visitation difficulties:

The court acknowledges that both parties recognize that it is critical for the children’s well being that the parties do everything they can to overcome the past problems. Furthermore, ... the parties are lucky that the children are doing ivell in spite of the ivrenching away at the separation.

(Emphasis added.) Although the trial court acknowledged that Michael could provide well for the children, it ultimately decided that the visitation problems were paramount:

The court can only look at past behavior and finds there has been a rigidity by Mr. Park in response to his responsibilities regarding visitation and that he has resisted following the spirit of the court’s orders in that regard, even though he has been shown to be a caring, and effective father in many, many ways.

As well as drawing its own conclusions, the trial court also relied on the custody investigator’s assessment of the stability factor in her report to the court. A review of the custody investigator’s fifteen-page report belies the court’s claims that the custody investigator only gave “cursory recognition” to the advantages of the children living in Texas and provided “no meaningful discussion” of the need for continuity.16 The court quotes only one paragraph from the report to support this premise.17 What the court does not excerpt is the report’s discussion of, among other things, the religious and after-school activities in which both children are involved in Texas; the girls’ school life in Texas; and the fact that Lacey misses her Anchorage friends and dislikes Texas, whereas Bailie likes Texas. The report also discusses the Texas home study conducted by a social worker before trial. The report acknowledges that the study provided “valuable information about Mr. Park’s living situation” but notes the contradictions between the Texas home study, which the custody investigator herself requested, and the custody investigator’s own interviews with the children. In her testimony at trial, the custody investigator again referred to the Texas home *214study, explaining her review of it and why she took issue with some of the findings contained in the study.

The court dismisses the trial judge’s adoption of the custody investigator’s recommendations as “conclusory.”18 But in Duffus v. Duffus,19 we noted that a trial court’s adoption of a custody investigator’s conclusions on a particular factor, even without further explanation, can be sufficient to show that the trial court addressed the factor.20 One Michigan court has likewise held that trial courts need not articulate the factual bases for their custody determinations when doing so would repeat language contained in a custody investigator’s report adopted by the court:

We do not believe that ... the circuit court can be said to have failed to state its findings on each [statutory factor], ... since the court expressly adopted the findings enunciated by the referee. Those findings are presented in detail in five pages in the referee’s report. A repetition of the referee’s findings in the court’s order of custody, rather than a declaration of adoption of those findings, was not required.21

Here, the superior court expressly included in its written order a similar declaration of the custody investigator’s conclusions. Although the superior court did not specifically adopt the custody investigator’s findings on any particular factor, as did the court in Duffus, it did refer to the custody investigator’s report in its oral findings in the context of discussing the inevitable difficulty the children would have in saying good-bye to friends and family in Texas. More fundamentally, absent some specific allegation supported by the record, the supposition that a trial court would adopt a custody investigator’s recommendations without carefully reading and considering the contents of the report is at best unwarranted.

The superior court’s findings also serve the purposes underlying the standard for adequacy of findings that we outlined in Bor-chgrevink: aiding the trial court’s analysis, allowing meaningful appellate review, and enabling litigants to determine which issues to appeal.22 Judge Michalski’s findings provide a clear indication of the primary basis for the custody decision — Michael’s interference with visitation — and provide a discussion of the only other relevant disputed factor — stability. Accordingly, no reason exists to believe that the superior court’s reasoning was guided by anything other than consideration of all the appropriate statutory factors. For the same reason, the findings are sufficiently reviewable and adequately identify the issues on appeal. Indeed, Michael’s exclusive focus in his trial and appellate briefs on visitation difficulties and stability shows that the superior court’s findings made the bases for the custody decision sufficiently clear to the litigants.23

It is also worth noting that interference with visitation is a particularly significant issue with respect to determining custody.24 *215For example, substantial interference -with visitation is sufficient under Alaska law to constitute a substantial change of circumstances that may justify and require modification of custody after a court has already issued a decree, if modification is in the child’s best interests.25 One New York court wrote that interference with visitation is also an especially important factor in awarding-custody: “Interference with the relationship between a child and a noncustodial parent by the custodial parent is an act so inconsistent with the best interests of the child as to per se raise a strong probability that the offending party is unfit to act as a custodial parent.” 26 Here, the custody investigator noted how unworkable the situation had become, notwithstanding the advantages of the Texas living situation:

There are also advantages of allowing the children to remain with their father, in Texas, where they are building a new life. On the balance, it seems clear that visitation between the children and their mother will continue to be impeded if Michael retains physical custody. Although this investigator has no concrete information about idhat Tara is likely to do about visitation, it is fairly clear that the current situation works poorly for the children.

(Emphasis added.) Although trial courts should not give undue weight to any one statutory factor to the exclusion of other factors,27 we have previously affirmed trial courts’ custody decisions that rested primarily on lack of cooperation in visitation 28

Disputes over child custody are among the most difficult cases a trial court must face.29 Remanding a case such as this because of perceived “shortcomings”30 in the trial court’s written findings will result in unnecessary work for the trial judge, whose time would be better spent resolving undecided cases in the superior court’s heavy domestic relations caseload. As long as the record reveals which factors the trial court found important in making its custody determination and supports the trial court’s ultimate decision, we need not remand for further findings.

III. CONCLUSION

I believe that the court’s decision to burden the trial judge by requiring him to make additional written findings on relevant statutory factors is unsupportable under our case law. Because the superior court’s findings in this case were adequate to reveal the court’s analysis, allow meaningful review, and guide the litigants on appeal, I respectfully dissent.

. 941 P.2d 132 (Alaska 1997).

. Id. at 137 (emphasis added) (citing Bird v. Starkey, 914 P.2d 1246, 1249 n. 4 (Alaska 1996)). See also Julsen v. Julsen, 741 P.2d 642, 649 n. 10 (Alaska 1987) (noting that an express tally of factors is unnecessary as long as the record reflects consideration of factors); McDanold v. McDanold, 718 P.2d 467, 470 (Alaska 1986) (“Mere recital of the statutory language helps no one. However, the trial court should specifically address all relevant'statutory factors where applicable.").

. Duffus v. Duffus, 932 P.2d 777, 779 (Alaska 1997). See also Bird, 914 P.2d at 1249 (requiring trial court to explain its reasoning only "where those reasons are not apparent from the record”); Lowery v. McMurdie, 944 P.2d 50, 53-54 (Alaska 1997) (Fabe, J., concurring in part and dissenting in part) (noting that remand is inappropriate if either findings or record disclose court’s reasoning). Cf. Bellanich, 936 P.2d at 146 (Fabe, J., concurring in part and dissenting in part) (noting in context of property division case that findings need not be extensive); D.H. v. State., DHSS, 929 P.2d 650, 657 (Alaska 1996) (Fabe, J., dissenting) (arguing that, in a CINA proceeding, the court's findings or the record need only show the bases for the court’s decision).

. See, e.g., McDanold, 718 P.2d at 469-70 (citing cases); In re Marriage of Lester, 791 P.2d 1244, 1246 (Colo.App.1990) (holding that a trial court need not make specific findings if the record as a whole indicates that the court considered the necessary factors); In re Marriage of Diehl, 221 Ill.App.3d 410, 164 Ill.Dec. 73, 582 N.E.2d 281, 290 (1991) (same); Peterson v. Peterson, 408 N.W.2d 901, 903 (Minn.App.1987) (same); In re Marriage of Saylor, 232 Mont. 294, 756 P.2d 1149, 1151 (1988) (holding that a trial court need not make specific findings if custody order is supported by substantial evidence in the record).

. Julsen, 741 P.2d at 649 n. 10.

. Op. at 205.

. Op. at 207 (emphasis added).

. See Borchgrevink, 941 P.2d at 137.

. See Bird v. Starkey, 914 P.2d 1246, 1249 n. 4 (Alaska 1996); Julsen, 741 P.2d at 649 n. 10; McDanold, 718 P.2d at 470.

. Op. at 209-210.

. McDanold, 718 P.2d at 470.

. Borchgrevink, 941 P.2d at 137.

. See id. at 139.

.See Op. at 208; see also AS 25.24.150(c)(5). Michael argues this point only to the extent that he includes a sentence in his brief stating that stability and continuity are legitimate custody factors and inaccurately claims that the trial court "did not make any findings at all with respect to any of the [factors].”

. Op. at 209.

. See id.

. Op. at 211.

. 932 P.2d 777 (Alaska 1997).

. See id. at 780.

. Constantini v. Constantini, 171 Mich.App. 466, 430 N.W.2d 748, 750 (1988).

. See Borchgrevink v. Borchgrevink, 941 P.2d 132, 139 (Alaska 1997).

. Although the court's expressed concern is that the trial judge failed to make sufficient findings, the court also appears to second-guess the findings that it acknowledges the trial judge did make with respect to the visitation disputes. See Op. at 209-210. The court states that its discussion of the trial judge’s findings is for the "limited purpose” of comparing the findings to the record as a whole to determine whether the trial judge should have given the visitation issue "dis-positive significance.” Op. at 210 n. 14. But the court does not discuss the findings in the context of other evidence; rather, it attempts to draw new inferences from the evidence as to whether Michael violated "the spirit” of the trial judge's visitation orders, or whether he was merely responding reasonably to Tara’s motions and the court’s interim custody order. See Op. at 210. As the court itself acknowledges, such new inferences should not be drawn unless the trial judge's factual findings are clearly erroneous. See Op. at 210 n. 14.

.See generally Kimberly K. Holtz, Comment, Move-Away Custody Disputes: The Implications of Case-by-Case Analysis & the Need for Legislation, 35 Santa Clara L.Rev. 319, 345-47 (1994) (emphasizing the importance of unhindered visitation to the best interests of the child in cases in which one parent moves out of state); Jeff Atkin*215son, Criteria for Deciding Child Custody in the Trial and Appellate Courts, 18 Family L.Q. 1, 25-26 (1984) (noting preeminence of interference with visitation as a custody factor and listing benefits of giving custody to the parent who best facilitates visitation).

.See Hermosillo v. Hermosillo, 797 P.2d 1206, 1209 (Alaska 1990); see also Lee v. Cox, 790 P.2d 1359, 1362 (Alaska 1990). See generally Scott E. Friedman, The Law of Parent-Child Relationships 176 (1992) (noting that disregard of court visitation orders and failure to bring children to court appearances may justify a change in custody).

. Maloney v. Maloney, 208 A.D.2d 603, 617 N.Y.S.2d 190, 191 (1994).

. See, e.g., I.J.D. v. D.R.D., 961 P.2d 425, 428 (Alaska 1998).

. See, e.g., Julsen v. Julsen, 741 P.2d 642, 649 (Alaska 1987).

. See id. at 648; McDanold v. McDanold, 718 P.2d 467, 468 (Alaska 1986).

. Op. at 211.