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Supreme Court of Alaska

Fitch v. Eiseman
Alaska
2000 WL 34545801 (Alaska 2000) (unpublished opinion)

Case Details
Printable Version
Summary:   The trial court approved a divorcing couple’s agreement for dogs to be with their children (and so travel to the husband's and wife’s houses as part of a shared custody agreement of their children).  The wife did not abide by the agreement, so the Supreme Court remanded back to the trial court to determine sole ownership of the dog.

Opinion of the Court:

MEMORANDUM OPINION AND JUDGMENT FN*

FN* Entered pursuant to Appellate Rule 214.

*1 1. Gary Fitch and Nicole Eiseman lived together for eighteen years until May 1997, when they separated. They have two children, Lilly, age sixteen, and Jack, age twelve. After the separation, Nicole and the children remained in the family house, which Gary and Nicole owned as tenants-in-common. Gary moved into a one-room cabin with no running water, maintaining consistent visitation with the children.

2. By January 1998 the family had settled into a relatively stable pattern of custody. The children primarily resided with Nicole but spent one night each week and every other weekend with Gary, returning Sunday night. On overnight visitations, Jack spent the night with Gary but Lilly returned to Nicole's house so that she could have more privacy. Gary also saw the children on a more casual basis, frequently picking them up after school or driving them to activities.

3. In March 1998 Nicole filed a Verified Petition for Determination of Custody and Partition of Tenancy in Common. She requested primary physical custody, shared legal custody, child support, and liberal visitation rights for Gary. The petition also requested that the property accumulated during their partnership be divided.

4. Gary answered pro se. He requested that the parties “share[ ] physical custody as required to best serve the welfare and desires of the minor children” and that the specifics of the shared custody be “decided by agreement of the petitioner and respondent, in compliance with the decision of a recognized child welfare mediator, if needed.”

5. On February 5, 1999, the child custody investigator released her report. She recommended the continuation of the current custody arrangement with a few minor modifications, specifically the addition of set return times for visitation.

6. Both Nicole and Gary filed pretrial memoranda that adopted the investigator's recommendations almost verbatim. Nicole requested that the return times be earlier on Thursday and Sunday. Gary requested that the weekend visitation end on Monday morning rather than Sunday night. Nicole and Gary both indicated that the property division and child support payments had been settled.

7. At trial, Nicole was represented by counsel but Gary appeared pro se. Nicole testified that although she wanted to continue the flexible custody arrangement, she believed it was important for the children to have set default return times to ensure that everyone knew what was expected. She explained that her proposed return times allowed the children to return home at a reasonable hour, finish their homework, take showers, prepare for school, and get to bed at the right time. She testified that the Sunday night return time was preferable for similar reasons. She pointed out that Gary's cabin has no running water, and Jack cannot shower or wash his clothes there.

8. Gary testified that he thought flexibility was important and that Nicole would enforce the set return times in a way that minimized his visitation with the children. He testified that he requested the Monday morning return time so that Jack could have the option of spending the night.

*2 9. During trial, Gary objected to the term “primary physical custody” as a description of Nicole's custody status. The trial court viewed this objection as semantic rather than substantive and told Gary that the court would refrain from using the term “primary physical custody” in its order. Neither Gary nor Nicole objected to this suggestion.

10. Gary and Nicole also disagreed about the ownership of the family's two dogs. Gary initially requested that one dog go to Nicole and one dog go to him. Nicole testified that the dogs were really the children's dogs and should not be separated. The trial court asked Gary, “[w]ould you be willing to be bound by an agreement that says, if the kids want to bring the dogs to your house that's fine, if they don't that's fine too?” Gary agreed. Nicole did not object.

11. Gary also criticized Nicole's failure to disclose her full finances. He testified that he was “not going to dispute this settlement of that house,” nor was he going to dispute the child support agreement. He explained, however, that some of Nicole's savings were supposed to be for the children's education and that he would like a full accounting of the children's financial investments and savings. The trial court stated that “shared legal custody” would require full disclosure of the children's financial affairs. The trial court asked Nicole whether she agreed with that interpretation of “shared legal custody,” and Nicole agreed.

12. At the end of the trial, the court summarized the agreements that had been made and stated that it was adopting the custody arrangement listed in Nicole's pretrial memorandum because it “best serves the kids' interests.”

13. A few weeks later, Nicole's counsel filed proposed Findings of Fact and Conclusions of Law. Through his newly-retained counsel, Gary filed objections, challenging the term “primary physical custody,” the set return times, the Sunday night return time, and Nicole's failure to disclose her financial assets. The trial court signed the findings as submitted.

14. Gary then filed a late motion for additional findings. Nicole opposed Gary's motion, and the trial court denied Gary's motion as untimely. The trial court also denied Gary's subsequent motion for reconsideration. Gary now appeals to this court, claiming that the trial court erred in failing to make sufficient findings, failing to require Nicole to disclose her financial assets, and failing to abide by the oral agreements made at trial regarding the ownership of the dogs, the term “primary physical custody,” and the disclosure of the children's financial assets.

15. Findings in child custody cases “need not be extensive, but must either give us a clear indication of the factors which the superior court considered important in exercising its discretion or allow us to glean from the record what considerations were involved.” FN1 In this case, we can partly glean from the record the factors that the trial court considered important.

FN1. Bird v. Starkey, 914 P.2d 1246, 1249 n. 4 (Alaska 1996).

*3 16. There is sufficient evidence in the record to support the trial court's finding that setting specific return times for Gary's visitation is in the children's best interests. At trial, Nicole testified that the custody arrangement was not workable without default set return times. The trial court agreed that a custody order, where the exact amount of visitation is disputed, “wouldn't be workable without set times.”

17. There is also sufficient evidence in the record to support the trial court's finding that Jack's weekend visitation should end on Sunday night rather than Monday morning during the school year. At trial, Nicole testified that a Sunday return time would give Jack time to get ready for school, take a shower, finish his homework, and get to bed at a reasonable hour. She pointed out that Jack was unable to take a shower at Gary's house because there was no running water. Finally, she testified that a Sunday night return was already the default position and that it should remain so. The custody investigator's report also advocated a Sunday night return. In response, Gary testified simply that he wanted to give Jack the option of staying over and that he was worried about Nicole's control issues. This evidence supports the trial court's determination that this visitation schedule was in the children's best interests during the school year.

18. However this evidence does not support the trial court's conclusion that the visitation schedule was in their best interests during the summer. Nicole's rationale for the Sunday night return is largely inapplicable to the summer months. Because we cannot glean from the record why this visitation schedule should not be changed during the summer, we remand for further findings on whether the arrangement is in the children's best interests during the summer. Gary raised the issue of summer visitation during the trial .FN2 But neither parent testified regarding possible summer arrangements. On remand, the court may choose to conduct a supplemental evidentiary hearing and explore this subject further.FN3

FN2. We acknowledge that Gary mentioned this issue only briefly and in connection with the need to preserve flexibility in the visitation schedule. (He stated that “soon school will be over [and] that would change the children's schedule all together.”) But given Gary's pro se status, he was entitled to have the issue of summer visitation addressed directly by the trial court. See Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987) (trial judge should inform pro se litigant of proper procedure for action he or she is attempting to accomplish).

FN3. See I.J.D. v. D.R.D., 961 P.2d 425, 432 (Alaska 1998) (remanding custody case to trial court because trial court failed to address summer and holiday visitation and failed to make specific findings regarding limitation of visitation during those times).

19. We note that expanding summer visitation may change the child support payments. If Gary then has more than 110 overnights with the children, child support payments should be calculated under Civil Rule 90.3(b) rather than Civil Rule 90.3(a).FN4 If necessary, the court should instruct both parents to supplement their child support guidelines affidavits pursuant to Civil Rule 90.3(e).

FN4. See Alaska R. Civ. P. 90.3 cmt. V.A.

20. We hold, however, that it was harmless error for the court to fail to require full financial disclosures from Nicole at trial. Although Civil Rule 90.3(e) requires financial affidavits from both parents, Nicole's failure to file the affidavit until after the trial did not prejudice Gary's interests. Gary had already stipulated to a $500.00 per month child support payment and had already agreed to the proper division of the community assets.

21. On remand, the court should consider correcting the discrepancies between the written order and the parties' oral agreements. Specifically, the court should consider deleting the references to “primary physical custody” and including a reference to Gary's right to information regarding the children's financial assets. The court should also consider clarifying the ownership of the dogs.

*4 22. In light of the evidence in the record, we AFFIRM in part and REVERSE in part the superior court's order. We REVERSE the order as it relates to the custody arrangement during the summer months and REMAND for further findings of the children's best interests during the summer and for consideration of the subjects noted in paragraph 21 of this opinion.

 

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