Duffus v. Duffus

OPINION

COMPTON, Chief Justice.

I. INTRODUCTION

Kenneth Duffus appeals the superior court’s denial of a motion to modify a child custody order. We affirm the. decision below and remand the case for amendment of the order’s provision regarding disclosure of crucial information to the children.

II. FACTS AND PROCEEDINGS

Kenneth and Juliann Duffus were married in 1978. They have two children, Elizabeth (Beth), born in 1983, and Michelle, born in 1987. Kenneth and Juliann were divorced in 1990. They agreed that Juliann would have sole legal and primary physical custody, while Kenneth would retain visitation rights.

In July 1994 Juliann’s job was eliminated. In October she accepted a job offer in Colorado and moved there the following month, taking the children with her. Since the move, Beth has expressed a desire to live in Alaska, while Michelle would rather spend the school year in Colorado and vacations in Alaska. However, the custody investigator testified that both children truly wish to maintain the status quo.

Following her move to Colorado, Juliann has canceled or shortened all of Kenneth’s visits. A visit planned for Thanksgiving 1994 was canceled by Juliann.1 As a result, Ju-liann was fined and ordered to return the children to Alaska by December 18 for a Christmas visit. Juliann did bring the children to Anchorage, but cut the visit from fifteen days to six days. In March 1995 Juliann sent Kenneth a letter stating she would not allow the children to visit him that summer unless he secured a court order for their return. Juliann eventually brought the children to Alaska for their visit, but she delayed that visit from June 15, as required by court order, to July 4. Throughout this period, Kenneth refused to discuss any visit arrangements with Juliann. Indeed, since the move the parties have demonstrated a near-total inability to communicate with each other in any meaningful way.

In the course of visitation disputes, Kenneth discovered that Doug Glynn, Juliann’s apparent paramour, had become involved in the children’s lives. Glynn was convicted of molesting several male children over a decade ago. He has shown unusually positive signs of reform by admitting his crimes, cooperating fully with treatment efforts, and seeking help on his own initiative whenever he fears a relapse. However; Glynn is not *779“cured,” and Ms probation order proMbits him from being alone with any child.

Glynn is present in Juliann’s home every day after work until the family goes to bed. He answers the telephone and has received certified mail at Juliann’s home. He also has spent brief periods of time alone with the children. For instance, on several occasions, the children answered Juliann’s telephone and passed it to Glynn after stating that their mother was not home. Private investigators also observed Glynn and the children alone for several brief periods. Juliann has not told the children of Glynn’s past.

Following Juliann’s move and the visitation disputes, Kenneth moved to modify custody. The superior eourt denied the motion. TMs appeal followed.

III. DISCUSSION

A. Standard of Review.

“TMs eourt will overturn a lower court’s resolution of a custody issue2 only when there is an abuse of discretion or where there are clearly erroneous findings of fact.” Bird v. Starkey, 914 P.2d 1246, 1248 (Alaska 1996) (citations omitted) (when trial eourt made no findings whatsoever, case was remanded for “findings of fact wMch address all relevant criteria of AS 26.24.150(c)”). “We deem a factual finding to be clearly erroneous when we are left with a defimte and firm conviction on the entire record that a mistake has been made, even though there may be evidence to support the finding.” Brosnan v. Brosnan, 817 P.2d 478, 480 (Alaska 1991) (citation omitted). A trial eourt will be found to have abused its discretion if it “failed to consider statutorily-mandated factors, or improperly weighed certain factors in making its determination.” Bird, 914 P.2d at 1248 (citations omitted). Hence, a trial eourt is required to make findings on the various statutory factors which are sufficient to make the basis of its decision susceptible to review. Id.

Kenneth raises a number of discrete issues on appeal, many of which concern the trial court’s alleged failure to make findings addressing “all relevant criteria of AS 25.24.150(e).” However, Kenneth’s primary argument concerns the presence of Glynn- m the children’s lives, and the potential threat which Kenneth contends Glynn presents.3 None of Kenneth’s claims carry sufficient weight to compel reversal.

B. The Trial Court’s Findings Adequately Address All Relevant Statutory Criteria.

Under Bird, the trial court was required to make “findings of fact wMch address all relevant criteria of AS 25.24.150(e).” Bird, 914 P.2d at 1249. Alaska Statute 25.24.150(c)(6) directs the court to consider “the desire and ability of each parent to allow an open and loving frequent relationsMp between the child and the other parent.” See Pinneo v. Pinneo, 885 P.2d 1233 (Alaska 1992)(eustodial parent’s efforts to sever other parent’s relationsMp justified custody change). Kenneth argues that smce the court’s written order lacks an express finding on this factor, the court’s findings do not adequately address this issue.

TMs contention is contradicted by the record. While trial courts are encouraged to state all findings in their written 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. The court’s oral order included findings that “both parents’ conduct toward each other is outrageous ... Each of these parents fail in their commumcation with each other, commumcation which is absolutely necessary for their children’s well being ... Neither one of them *780respect their children well enough ... to communicate with the children's other parent ... [and] the victims ... are the children.” The court determined that both parents were at fault for the visitation problems, and that the only way to resolve the matter was “to order in minute detail any and all visitation and communication that the other parent is permitted or allowed.” Moreover, the written order directly addressed this issue by providing detailed visitation guidelines. Taken together, the court’s oral findings, as effectuated by its written order, are adequate to address the statutory factor and clarify the basis for the court’s decision on this issue.

In addition, Kenneth notes that under AS 25.24.150(c)(3), the trial court was required to consider “the child’s preference if the child is of sufficient age and capacity to form a preference.” See Rooney v. Rooney, 914 P.2d 212, 217 (Alaska 1996) (statutory standard is meant to give weight to child’s wishes). Kenneth argues that the court failed to make the required finding.

This contention also lacks merit. The court’s written order noted that “the children are of sufficient age to formulate and express a preference and have done so with the custody evaluator.” While this statement in and of itself does not outline or weigh the children’s preferences, the statement adopts the conclusion of the custody investigator. The investigator does identify a preference on the part of both children to spend school years with their mother and summers with their father. The court followed this preference. Hence, the trial court’s adoption of the investigator’s conclusion adequately addresses the relevant statutory factor.

C. The Trial Court Did Not Err in Refusing to Modify Custody in Light of Glynn’s Presence.

The heart of Kenneth’s appeal is his contention that the trial court’s finding that Glynn does not constitute a threat to the physical or emotional well-being of the children was clearly erroneous. While Kenneth’s concerns in this regard are understandable, we conclude that the trial court did not err in resolving this issue.

There is no bright line rule against the involvement of any specific category of persons in a household which includes children. In making a custody determination, the court considers only “facts directly affecting the child’s well-being.” S.N.E. v. R.L.B., 699 P.2d 875, 878 (Alaska 1985)(absent any showing that mother’s lesbian status adversely affected the child, mother’s lesbian status had no bearing on custody decision). Kenneth has not demonstrated that Glynn presents a threat to the children’s physical or emotional well-being, and therefore his argument fails.

The trial court heard substantial evidence indicating that Glynn does not present a physical threat to the children. Glynn’s rehabilitation efforts have been exemplary. He has admitted his crimes, completed the state’s treatment program, and sought help on his own initiative when he feared relapses might occur. Glynn’s parole officer told the custody investigator that Glynn was one of only two out of ninety sexual offenders she had supervised who appeared to be “likely not to re-offend.” While Glynn has broken probation by being alone with the children for brief periods, the investigator testified that the breach was insignificant, and that Glynn generally displayed great caution regarding probation. None of this evidence was refuted by Kenneth.

Moreover, the trial court took steps to ensure that Glynn remains in remission. The court’s order requires that Glynn establish a support system in Colorado, and that he provide written notice, within six months of the court’s decision, that such a system was in fact in place. These requirements provide an additional safeguard for the children by ensuring that Glynn’s rehabilitation efforts will continue if he remains part of the children’s lives. The court also required Ju-liann to provide sixty days’ written notice before Glynn begins to reside with her, or if the two of them plan to marry.

In the absence of any evidence that Glynn presents a threat to the physical well-being of the children, we cannot form “a definite *781and firm conviction on the entire record that a mistake has been made” in finding that Glynn does not pose a threat to the physical well-being of the children. Broman, 817 P.2d at 480. In light of that finding, and the broad discretion with which the superior court is vested, the court’s resolution of this issue was not an abuse of discretion. Id.

Kenneth also argues that Glynn’s presence in the children’s lives constitutes an emotional threat to the children, who will be hurt by the revelation that their mother has held back such important information from them. The court found that the damage caused by secrecy does not militate in favor of a custody change, since this harm would occur no matter which parent had custody. No evidence contradicting that finding was presented. Again, reviewing the entire record, we cannot form a definite and firm conviction that a mistake has been made. The finding is not clearly erroneous. Moreover, the court’s conclusion is logically sound, since no matter where the children are living, they will know their mother withheld crucial information when and if they learn of Glynn’s past. In addition, the court acted to ensure that the revelation of Glynn’s past will cause as little emotional harm as possible, by requiring that “[i]f Mr. Glynn is to remain involved with [Juliann, she] shall, within three months of the date of this order obtain the advice of a counselor ... as to how to prepare the children for revelation of Mr. Glynn’s past.” The court’s resolution of this issue also was not an abuse of discretion.

We note, however, that this provision does not clearly require that the children be informed of any restrictions on Glynn’s activities with them. In our view, the superior court on remand should modify paragraph 7 of the custody and visitation order to address the issue of informing the children that Glynn is not to be alone with them (as required by his probation), and that they should report inappropriate behavior by dlynn or any other person to some responsible adult. Further, the court should require that both the father and the court be advised of the substance of the information imparted to the children on this topic.

IV. CONCLUSION

The trial court made findings which adequately addressed “all relevant criteria of AS 25.24.150(e).” In addition, the court’s finding that Glynn does not pose a threat to the well-being of the Duffus children was not clearly erroneous in light of the unrefuted evidence supporting that determination. Lastly, the superior court found, and upon its findings, concluded that

[t]he only significant change that has occurred since the original custody order was entered bearing on the best interests of the children is the relationship that has developed between plaintiff and Mr. Glynn which the court has discussed above, and the concerns raised by the custody evaluator and shared by the court can be resolved in the Custody and Visitation Order which the court will enter.

We conclude that the superior court’s denial of the motion to modify custody was not an abuse of discretion. Accordingly, the decision of the superior court is AFFIRMED. The case is REMANDED for modification of the order as specified above.

. Kenneth refused to discuss the visit, and simply ordered Juliann to put the children on a plane at a time he designated. Juliann refused to comply because she felt the children would miss too many days of school.

. The court will modify a child custody award if "a change in circumstances requires the modification of the award and the modification is in the best interests of the child.” AS 25.20.110. Once a party demonstrates a substantial change in circumstances, as the parties. concede has occurred here, the court must consider “whether, in light of such changed circumstances, it is in the child’s best interest to alter the existing custodial arrangement.” Long v. Long, 816 P.2d 145, 150 (Alaska 1991) (citations omitted).

. Kenneth's motion was originally motivated by the disputes surrounding visitation in the wake of Juliann's move. However, the focus of his claim shifted after proceedings began and Kenneth learned of Glynn's involvement with Juliann.