Duffus v. Duffus

disputed alter he received all later pay-

ments, investigation and that each conducted illegalities Board irregu- found no or compensation.

larities in Kilmer’s sum, the record indicates that

Board’s “loss of confidence” was reaction to

public controversy over the Board’s decisions regarding

and actions compensa- Kilmer’s By affirming discharge,

tion. the court effectively employ- transformed Kilmer’s

ment status into employee. that of an at-will

It is clear that there awas fundamental

misunderstanding between Kilmer and the compensation.

Board the matter of In-

deed, at least one member of the Board did

not even consider Kilmer’s remuneration to “compensation.” There is no evidence

that Kilmer understood there was misun-

derstanding regarding compensation until a

Board member compensa- made an issue of

tion, public became roused. When

that misunderstanding apparent became

Kilmer, agreed he to reduce the amount au- $30,000.

thorised Addendum Two to a flat equally Board,

It seems clear that the faced public conduct, disapproval of its and a

possible against lawsuit its members individ-

ually, sacrificed Kilmer to save itself.

I would reverse the decision of superi- court, grant with directions that it Kilmer by jury. alternative,

a trial In the it should

determine damages. Kilmer’s DUFFUS, Appellant,

Kenneth M. DUFFUS, Appellee.

Juliann N.

No. S-7583.

Supreme Court of Alaska.

Feb.

778 AND

II. FACTS PROCEEDINGS and Juliann Duffus were married Kenneth They in two Elizabeth 1978. Michelle, (Beth), 1983, in born and born in were divorced in 1987. Kenneth and Juliann They agreed that Juliann would have 1990. primary custody, legal and sole rights. visitation while Kenneth would retain job July 1994 was eliminated. Juliann’s job in she offer accepted In October Colo- following month, moved rado and there the taking her. the children with Since the move, expressed a desire to Beth live Alaska, spend while would rather Michelle year in the school and vacations Colorado However, custody investigator Alaska. truly that both children wish to testified quo. maintain the status Colorado, Following her move to Juliann all of has canceled shortened Kenneth’s planned Thanksgiving A visit for visits. result, canceled As a Juliann.1 Ju- fined to return liann was and ordered children to Alaska December for a bring the visit. Juliann did chil- Christmas Anchorage, to cut the visit from dren but days days. to six In March 1995 fifteen stating sent a letter Juliann Kenneth she to him would not allow the children visit unless he a court order for summer secured brought eventually their return. Juliann Bailey, M. Law of Allen Allen M. Offices visit, to but children Alaska for their she Anchorage, Bailey, Appellant. for delayed that visit from June as order, July Throughout 4. Johnson, Donald M. Law Offices of Donald any period, Kenneth to discuss visit Johnson, P.C., refused Anchorage, Appellee. M. Indeed, arrangements with Juliann. since parties move the have demonstrated a COMPTON, C.J., and Before inability communicate with RABINOWITZ, near-total each MATTHEWS, EASTAUGH way. meaningful FABE, JJ. and disputes, course In the of visitation Ken- OPINION Doug Glynn, neth discovered that COMPTON, Chief Justice. apparent paramour, had become involved I. INTRODUCTION the children’s lives. was convicted of Duffus appeals Kenneth molesting several male children over dec- modify unusually positive of a a child ago. court’s denial motion to He has ade shown crimes, by admitting affirm decision below signs order. We the. of reform co- efforts, fully operating the case for amendment of treatment and remand seeking help cru- initiative provision regarding disclosure of on his own whenever order’s However; relapse. fears a is not cial information to the children. he visit, simply she felt would miss too because the children Kenneth refused discuss put plane at days on a many ordered Juliann the children of school. comply designated. Juliann refused to a time he “cured,” probation proMbits susceptible and Ms basis of its decision to review. him from alone with child. Id. every in Juliann’s home Kenneth a number of raises discrete issues goes day family after until the to bed. work appeal, many of which concern the trial telephone He answers the and has received alleged findings failure to make ad- mail at Juliann’s home. He also has certified dressing “all relevant of criteria AS

spent periods brief of time alone with the 25.24.150(e).” However, primary Kenneth’s instance, occasions, children. For on several argument Glynn- presence concerns the of m telephone answered children lives, potential children’s and the threat passed stating it to after which Glynn presents.3 Kenneth contends their mother not home. Private investi- was carry None of Kenneth’s claims sufficient gators also observed and the children weight compel to reversal. periods. alone for brief Juliann has several Glynn’s past. not told the children of B. The Findings Adequately Trial Court’s Following Juliann’s move and visitation Statutory Address All Relevant modify custody. disputes, Kenneth moved to Criteria. eourt denied motion. TMs appeal followed. Bird, trial Under court was re quired “findings to of make fact wMch ad III. DISCUSSION 25.24.150(e).” dress all relevant criteria of AS Bird, 914 at 1249. Alaska Statute A. Review. Standard of 25.24.150(c)(6) to directs the court consider “TMs eourt will overturn a lower ability “the of parent desire and each to allow custody of only court’s resolution a issue2 open loving an frequent relationsMp be an when there is abuse of discretion or where tween parent.” the child and the other See clearly findings there are erroneous of fact.” Pinneo, (Alaska Pinneo v. 885 P.2d 1233 1246, (Alaska Starkey, Bird v. 914 P.2d 1248 1992)(eustodial parent’s efforts to sever other 1996) (citations omitted) (when trial eourt parent’s relationsMp justified custody whatsoever, findings made no case was re change). argues Kenneth that smce the “findings manded for of fact wMch address express finding lacks an written order 26.24.150(c)”). all relevant criteria of AS factor, findings on this the court’s do not clearly “We deem a factual to be adequately address issue. erroneous when we are left with defimte and firm conviction on record the entire TMs contention is contradicted the rec- made, though encouraged a mistake been ord. even there While trial courts are may orders, support finding.” findings be evidence to state all in their written Brosnan, (Alas 478, required long Brosnan v. 817 P.2d 480 are not to do so as the as basis 1991) (citation omitted). ka trialA eourt will for their is clear decisions from record be found susceptible abused its discretion if it and thus to review. The court’s statutorily-mandated “failed to oral findings par- consider fac order that “both included tors, weighed improperly factors in ents’ conduct each is outra- certain toward other Bird, making geous parents 914 ... fail in its determination.” P.2d at Each these their (citations omitted). Hence, other, 1248 trial eourt each commumca- commumcation with findings absolutely necessary is to make tion which for on various is their statutory which factors are sufficient to make children’s well ... one of them Neither modify custody Long Long, arrangement.” 2. The court a child todial will award if v. 816 P.2d change requires 145, "a (Alaska 1991) (citations omitted). in circumstances the modifi- cation of the award modification is in the best interests the child.” 25.20.110. AS Once originally 3. Kenneth's motivated motion party change demonstrates a substantial disputes surrounding visitation in wake of circumstances, parties. as the concede has oc- However, Juliann's move. the focus his claim here, “whether, curred the court must consider proceedings began shifted after and Kenneth circumstances, light changed of such it is in Glynn's learned of involvement Juliann. existing the child’s best interest to alter the cus- bright against line is no rule enough well ... respect children their There parent children's specific category with the other communicate the involvement ... are children.” ... victims [and] the which chil persons in a household includes parents that both were The court determined determination, making dren. problems, and that at fault the visitation only directly “facts affect the court considers “to only way resolve the matter was R.L.B., well-being.” S.N.E. ing the child’s any and all visitation order in minute detail (Alaska 1985)(absent 699 P.2d parent and communication that showing status that mother’s lesbian adverse Moreover, the writ- permitted or allowed.” child, ly mother’s lesbian status affected the directly issue ten addressed this decision). bearing Ken had no guidelines. Tak- visitation providing detailed Glynn pres neth has not demonstrated together, findings, oral as ef- en the court’s physical a the children’s or ents threat to order, adequate by written are fectuated its well-being, argu therefore and emotional clarify statutory factor to the and address ment fails. court’s on this the for the decision basis issue. The heard substantial evidence trial court addition, contradicting finding present- dence that above, which court the has discussed record, Again, reviewing entire ed. the we by the concerns raised the evalu- form a firm cannot definite and conviction ator by and shared court can be re- a that mistake has been made. The Custody solved in the and Visitation Order clearly is not erroneous. which the court enter. will sound, logically court’s conclusion is since no superior We conclude that the court’s deni- living, they matter where the children are modify custody al of the motion to was not an will know their mother withheld crucial infor- Accordingly, abuse of discretion. the deci- they Glynn’s when and if learn of mation court sion is AFFIRMED. addition, In past. the court acted to ensure The case is for REMANDED modification of Glynn’s past that the revelation of will cause specified the order above. as possible, by emotional as little harm as re- Glynn that quiring Mr. is to remain “[i]f FABE, Justice, EASTAUGH, whom with shall, [Juliann, she] involved with within Justice, joins, concurring. months of the this order three date of obtain Although agree I with result reached advice of a ... as counselor to how to by court, separately I write to articulate prepare the children for revelation of Mr. my reasoning. differences with the court’s Glynn’s past.” resolution The court’s of this clear, dissenting opinion As the makes also was not an issue abuse discretion. court look best must to the interests of the existing modifying arrange- child in custodial note, however, provision We that this 25.20.110(a). ments. AS While the court’s clearly require that the does children be footnote, opinion in a notes this standard it any informed of restrictions activ primarily Glynn repre- focuses on whether view, with them. In the superior ities our a sents threat to the children. This focus modify paragraph court on remand 7 should threshold; suggests high too a even of the and visitation order to address threat, absence of a or emotional a informing issue of children that best could favor a child’s interests modifica- (as not to be with them re alone custody arrangements. tion of As the dis- quired probation), they and that states, again correctly sent the court must report inappropriate should behavior any potential also examine effect on the chil- any dlynn person responsi to some well-being psychological dren’s emotional and Further, require frequent ble adult. the court should presence of “the their home of they repeatedly both whom that the father and the be advised man know reasons, in the especially in For these I concur past,” children in the interests. molested opinion. they alone with where are “situations Glynn.”1 Dissent at 783. RABINOWITZ, Justice, dissenting.

However, I the dissent agree do not with a motion to governs The standard which children’s well- that these concerns for the existing arrangements is the alter custodial findings being require a for further remand Long, Long interests of the best child. Glynn’s past to the chil- after disclosure (Alaska 1991). Without court, light especially The dren. any Glynn’s past awareness of conduct or custody investigator’s report and rec- of the status, spend- Beth and Michelle are ommendations, solution crafted a balanced time, ing significant some of it amounts of sixty days if ordering give that Juliann notice alone, molester who is with convicted child plans home or the move into her by pro- prohibited not cured therefore is provides plan marry. them This two of any from alone with bation for review the opportunity the court to I do not that this situation is child.1 believe provisions and make further matter in the best interests of the Duffus children. may girls’ safety become emotional that recognizes, in- As the court the mother’s im- necessary. opinion further necessarily with volvement upon by requiring that proves solution require girls removed the Duffus Glynn is not to children be informed that custody. Indeed, her is no “[t]here from should be alone them and bright against rule line the involvement report inappropriate Should behavior. any specific category persons in a house- Glynn begin to live in with the the household making hold which includes children. change this would constitute custody determination considers the court justify inqui- a new circumstances would directly only affecting ‘facts the child’s well- ry If the children into their best interests. ” view, Op. superi- being.’ my at 780. In preference living their express a with not adequately or court could determine how by after the father disclosure Glynn’s involvement Duffus children’s in. the opinion, preference this in would shift well-being affect until the fives would their change circumstances also constitute girls apprised were circumstances sur- justifying analysis. a new best interests past rounding his antisocial conduct and the Ac- probation terms of his current order. summary, my difference with cordingly, the best of Beth and interests opinion primarily emphasis. is in I meaningfully be Michelle cannot evaluated analysis the court’s should be believe extremely until this information is relevant chil- explicitly couched more in terms of the them, conveyed impact and the of such My with the best interests. difference dren’s on disclosure the two minor children is as- opinion timing. dissenting primarily in is sessed. prefer a would sec- While Justice Rabinowitz analysis prior interests to a resolu- ond best R.L.B., The court’s reliance on S.N.E. v. custody I not think dispute, (Alaska tion of the do 1985), holding necessary change in the that this is since a bearing custody lesbian status no automatically preferences decision, support children’s would conclusion is mis- its Glynn’s trigger placed. renewed of their best At stake more than consideration here is “cured,” probation prohibits agree him also with dissent that the issue X court is as a treated before the not status alone child. from with molester, status child but the nexus between his every day Glynn present is in home well-being. Dis- or conduct and sent at 782-83. The trial court understood children's family goes work until the to bed.... He after spent periods also has brief of time alone with and took it into nexus account. the children.... Juliann has not told the chil- Glynn's past. dren of opinion, 1. As stated in the court's molesting Glynn male was convicted of several Glynn ago.... is children over decade not child molester.2 The indication of status as treated sent adverse on the effects rather, given question, bearing the best interests child. Nor does children out of custody governs instability determina- relationships standard which wedlock or in war- tions, custody change is whether the Duffus children will feel rant a parent’s where the in adversely safe and secure in an environment which conduct does not the child affect frequently present, is at times without parenting the mother’s abilities. Even presence If of other adults. Beth and parent mental health of the custodial is full only Michelle—with awareness of the circum- “relevant insofar as it has or can be psychologically expected negatively stances —do or emotional- the child.” affect ly Glynn’s presence, in feel safe and secure S.N.E., (footnote 699 P.2d at 878 and cita- unlikely the home environment is to be one added). omitted, emphasis tions girls’ well-being in which the will be served. It is reasonable to believe that Beth and pose any if This true even does not might adversely Michelle be affected danger actual to the children. frequent presence in their home of a man previous require This court’s cases a rea- they whom repeatedly know to have molest- sonable nexus between the status or conduct ed in past. children the chil- question well-being of a child. psychological dren’s emotional and well-being They require do not the child might well be affected situations where danger, impliedly actual the standard im- Glynn. superi- are alone with Since the posed court and affirmed or court made its determination as to opinion.3 the court’s As we stated S.N.E.: before the children were made aware of aWhen court determines the best inter- Glynn’s past status, conduct and one changed ests the child under the circum- only speculate can as to the revelation’s ef- doctrine, scope judicial stances in- girls. fect on the Duffus I thus conclude that quiry directly affecting is limited to facts court abused its discretion in well-being. the child’s ... making what is meant to be a best interests example, For that a living mother is position determination before it was in a another man in an relationship impact adulterous ascertain the of disclosure on the justify denying her ab- children.4 Op. at 779. If Mr. is to remain involved with the shall, plaintiff, plaintiff within three months of admits, Glynn’s probation 2. As officer "His sexu- the date of this order obtain the advice of a urges al towards minor males have diminished expert counselor or other field as to how offense, from the time of his but have not been prepare the children for revelation of Mr. entirely eliminated. This consistent with what Glynn's past way integrate and of the best therapists reported, insofar as there is family him into the unit without threat to the no ‘cure.’" children or him. provision contemplate possi- This seems to opinion: 3. As stated in the court's bility Glynn's that the revelation of condition appeal The heart of Kenneth’s is his conten- potentially consequences could have adverse finding tion that the trial that Michelle, mitigate Beth and and seeks to those does not constitute a threat to the However, consequences. the order not does re- well-being emotional of the children was clear- information, quire Juliann to disclose the but is ly erroneous. While Kenneth's concerns in simply likely possibility reactive to the that the understandable, regard this are we conclude girls will somehow discover it for themselves. resolving that the trial court did not err in problematic. This in itself is Whatever threat issue. Glynn's poses condition to the children’s emo- physical well-being tional and could be ad- In the absence of evidence that dressed, part, by at least in Beth and Michelle presents physical well-being a threat to they made aware that are be alone we cannot form "a definite and Glynn, according proba- to the terms of his firm conviction on the entire record that a tion, Glynn’s part and that certain behavior on mistake has been made” in that immediately reported should if it occurs. pose physical wellbeing a threat to the Given that these conditions have not been im- of the children. posed, agree I with the court’s decision to re- Op. at 780-81. superior mand this matter to the court for modi- superior provides: 4. provision. The court's order fication of the relevant superior I believe Castaño, HUGHES, Er Bland L. of the chil- R. consideration John

court’s mandated Floyd King, Harry Tronnes, Dive ling inadequate, given the O. preference dren’s Overton, Hjelle, stein, and Eddie T. to Beth Carsten information available lack of Bergh, Reynolds, P. Ju- L. Robert they “chose” to live with Robert Michelle when Navarro, Derikrava, Roque P. know of children did not Samuel liann. Because the Marshall, status, Pinto, Ru Andrew S. treatment Zenon J. Glynn’s past or current Salcido, Creigh Guerra, Feliciano expressed an informed ben they could not have Miller, arrangements. Administrator of the Es custody See ton E. preference as to Lee, Tung 25.24.150(c)(3); Rooney, William 0. Rooney v. tates of Pok AS Berlund, (Alaska 1996). Anderson, F. Warren J. 212,217 Allan Henry, Kusman, T. Peter J. Cor Edward recognized and the As Mobley, Payne, via, Leroy L. James I. affirms, are “of the children opinion Rogers, Cranston, Malcolm Robert express age to formulate sufficient McCall, Lloyd Borland, Lucius James custody arrangements. as to preference” Franklin, Goo, and Frank M. Alfred W. required to consider superior court was The Barber, Appellants, W. preferences. To the extent these severely limited on flawed or were based CO., Crown Cork & information, Beth WHEELER preferences stated FOSTER ACandS, Co., Inc., Garlock, Inc., provided a not have Seal and Michelle should Corp., Phillips Inc., Petroleum custody Mobil Oil decision.5 basis for the Co., Corp., Pope Co., Talbot & Gatke appropriate time at which to make Corp., Co., Fibreboard Electric General Duffus children’s best determination Co., Co., Texaco Plibrico Tidewater Oil passage of a be after the interests would Cranehoudaille, Inc., Inc., United John following disclosure reasonable time Corp. Corp., Ow Steel USX States a/k/a present condition. Glynn’s past conduct and Packing Co., ens-Illinois, Inc., Anchor have, do Admittedly on the record we Steamship Co., So- Alaska reasonably might conclude superior court Defendants”: A.P. Green “CCR Called remaining custody is in the Co., Armstrong In World Refractories However, children. interests of the best dustries, Inc., Corp., Flexi Certainteed separate opin- in this the reasons discussed Gypsum tallic, Inc., Corp., National GAF ion, superior court erred I that the believe Co., Co., Gypsum and Union Car U.S. based on reaching its determination Corp., Appellees. bide Rather, it. the evidence before No. S-6928. to the issue should be remanded findings after disclosure has court for further Supreme Court of Alaska. made to Beth and Michelle been March condition, and a past conduct and period elapsed within which reasonable well-being of impact on their assess disclosures.

such given preference] Custody weight is whether or McCahey, Visita- child's Child & 5. See John P. (1993) (“a express informed, an intelli- § a child is able to 10.08[3] fre- tion Law and Practice added). (emphasis gent preference") recurring assessing and sound quently [in concern notes AS In Kenneth that under indicating Glynn does not a that 25.24.150(c)(3), required to the trial court was Glynn’s children. physical threat to the re- preference if child is child’s the consider “the exemplary. He habilitation efforts have been age capacity pref- to form a of sufficient and crimes, completed the has admitted his Rooney Rooney, 914 P.2d erence.” See program, sought help and state’s treatment 1996) (Alaska (statutory standard is relapses he on his own initiative when feared wishes). weight give meant to child’s to might Glynn’s parole officer the occur. told court argues that the failed to make Kenneth Glynn custody investigator that one of was finding. required the only ninety two out of sexual offenders she also The This contention lacks merit. “likely supervised appeared to had who noted that “the children written order Glynn not to re-offend.” While has broken age express are of to formulate and sufficient probation by being alone with the children preference so a and have done with the cus investigator periods, for brief the testified tody this in and evaluator.” While statement insignificant, that that the breach was and weigh or chil of itself does not outline Glynn generally displayed great caution re- adopts the statement preferences, dren’s probation. garding None of evidence custody investigator. of the The conclusion by was Kenneth. refuted identify preference investigator on the does steps trial court took to spend years part of children to school both in Glynn remains remission. mother and summers with their ensure that their preference. requires Glynn father. The court followed this that The estab- Hence, adoption Colorado, trial court’s of the inves system in support lish a and that tigator’s adequately addresses the conclusion notice, provide within six months he written statutory relevant factor. decision, system that such of the court’s requirements place. These fact in Did Err C. The Trial Court Not safeguard for provide an additional the chil- Refusing Modify Custody in to Glynn’s ensuring dren that rehabilitation Light Presence. of part if remains efforts will continue he of appeal Kenneth’s is his The heart of children’s The court also Ju- lives. finding that the trial court’s that contention days’ sixty to provide liann written notice Glynn does not constitute threat to Glynn her, begins reside with if before chil physical well-being of the or emotional plan marry. the two them clearly Ken dren was erroneous. While Glynn In the evidence that absence regard neth’s in this are under concerns physical well-being presents a threat to the standable, conclude that the trial court we children, form resolving of the we cannot “a definite did not this issue. err entire that of the substance of information imparted firm conviction on the record and topic. to the children on this finding has been that a mistake made” pose does not a threat Broman, CONCLUSION IV. well-being of the children. finding, light at 480. In findings The trial court made which ade- discretion with which the broad quately addressed “all relevant criteria of AS vested, resolution of this court the court’s 25.24.150(e).” addition, the court’s Id. issue was not an abuse discretion. pose threat to the well- clearly of the Duffus children was not Glynn’s presence argues also Kenneth light erroneous in unrefuted evidence an in the children’s lives constitutes emotion- supporting Lastly, that determination. hurt al threat who will be found, upon findings, its revelation that their mother has held concluded that important such information from them. back only significant change [t]he that has oc- damage court found that caused original curred since the order was secrecy favor of a does not militate in custo- bearing entered on the best interests of dy change, since this harm would occur no relationship the children is the that has parent custody. matter which had No evi- developed plaintiff between Mr.

Case Details

Case Name: Duffus v. Duffus

Court Name: Alaska Supreme Court

Date Published: Feb 28, 1997

Citation: 932 P.2d 777

Docket Number: S-7583

Court Abbreviation: Alaska