*1 injunction granted. if is not suffer will Industries, HOLL, Inc. v. Alaska Pub. Serv.
A.J. Appellant, E. (Alaska 1970); Comm'n, 470 P.2d Alaska Pub. Utilities Comm’n v. Greater HOLL, Appellee. Constance E. Anchorage Borough, Area S-3109, 1975). Nos. injury Where the which S-3178. temporary restraining result from the will Supreme Court of Alaska. preliminary injunction order or the is not Aug. 1991. adequately inconsiderable and not be bond, showing proba- indemnified required
ble success the merits is on before tеmporary restraining prelimi- order or a
nary injunction can be issued. Id.
trial court in this case failed to consider the
injury to subsistence users which would consequence
result as a of the issuance of temporary restraining order. Subsist-
ence statutory priority users are over users, 16.05.258(c),
commercial AS
injury would suffer as a result injunctive irreparable relief is as as injury which commercial fishermen
might injunctive suffer if relief were not circumstance,
granted. In this the court
should not have temporary ordered a re-
straining order without respon- probably
dents would succeed on the merits
of this case. Although
4. technically this case is now
moot, we have decided to exercise discre-
tionary review and issue this order as
precedent for future similar cases. The important
issues are recurring
they may otherwise evade review. See Co.,
Central Constr. Co. v. Home Indem. Kenai, Mysing, appellant. Peter F. Jr., Gruenberg, Max F. Gruenberg & Clo-
ver, Anchorage, appellee. RABINOWITZ, C.J., BURKE, J., not RABINOWITZ, C.J., Before participating. BURKE, MATTHEWS, COMPTON
MOORE, JJ.
OPINION PER CURIAM.
Roger and Constance Holl were married They had three children their divorce in 1986. The issue of property was bifurcated from divorce and issues, separately. and tried days, taking place trial lasted four over a period. nine month The trial court found *2 380 Brooks, 1044, v. 733 P.2d (quoting Brooks custody appropriate is not “joint that 1987)). (Alaska 1051 in the is further that case” and “[i]t
this that minor children of the interests best findings regarding In oral of fact its custody in the placed they [Con- from the bench at the custody, rendered she contingent whether stance], not trial, court said: of the the trial conclusion the Kenai-Soldotna moves area] [from But, you where I am on let me tell rights of Reasonable factor.” any other reviewing custody. After the evidence appropriate, found to be were visitation relationship of the to each accordingly. The was entered and a decree parents, in and the children to their other recon- Roger’s motion for court denied by trial hearing positions the stated spite of sideration, expanded joint but parties today, I don’t think that it con- respect to factors childrеn findings custody appropriate is for these custody they placed to its determi- I do think that should be significant sidered of their mother that Roger appealed. nation. on some kind of should not be based judgment the trial court's We affirmed contingency if move or don’t move findings of remanded “for further part, but thing and that Mr. Holl kind granting trial decision fact court’s] [the visitation. continue to have substantial сhil- custody of the Holl sole Constance And, parties if are able to work out In due course the trial dren....” be one week and so that it continues to RE- FINDINGS OF FACT ON entered week, paren- that is a certain kind of one again appeals. We affirm. MAND. they may tal wisdom that and have children; over their to exercise remarked, cus- often As we have “[c]hild however, parents agreeing, subject to the among the most tody determinations are they actually have they sound like Horton, in the v. difficult law.” Horton agreement on care of reached 1131, (Alaska 1974); 1132 see also 519 P.2d children, order it would be the Court’s 397, (Alas- Horutz, 560 P.2d 399 Horutz v. of the Defendant be that the visitation 1977); Lacy, 553 P.2d 929 Lacy ka v. weekend, alternating holi- the standard 1976). (Alaska Trial courts are vested with four days and three or weeks determining child custo- broad discretion and that the summer kind of visitation Julsen, 741 P.2d dy issues. Julsen v. making contingent or- is not it a Court 1978). (Alaska will reverse a trial 648 We der, and if she the order of the Court it’s if determination we court’s visitation, grant wishes has convinced that are I because I up to her. do this that’s discretion, controlling or if its broad abused key as well as think that the for Id.; clearly erroneous. of fact are relationship having a Curritt, 636 P.2d v. Starkweather this idea of which is at the heart of 1981); Horutz, (Alaska P.2d at 560 trying to find wise orders custody and of key I that is parenting, think for reviewing court’s When trial stability these—chil- reaching some fact, principle we are directed you if listen to the information dren and func- primarily is the trial court’s that “[i]t about these come to this Court that’s purpose weigh the evidence for the tion to very, very muсh they need that appeal, making findings, and on defer- degree by it to some substantial and lack court’s conduct, ence must be to the trial of their behavior virtue decision, of the trial particularly they’ve experienced because problems that observing examples, just advantage in the wit- court’s demonstrate. One Bonjour, testimony you if listen back to Bonjour today’s ness.” “Mom, merеly it, saying, can come “We determine the children of, sup- that is the kind trial court’s is home?” I think that whether the know, way maybe an accidental you ported by the record.” Lone v. Lone Wolf 1987) testimony, maybe it was phrasing the Wolf, recitation, provide adequate support but I think it’s charac- failure to precise (f) family; inability to work with Constance impression that this Court teristic of the given equal unlеss he was time with the received about the view of these specifically children. The court found being in experience toward their willingly did not enter into “[Constance] relationship split this *3 any permanent joint custody kind of agree- place they they have a home one and [Roger], acquiescence ment with but her and that’s how it are with dad at another largely necessity. was dictаted out of She And, think, important, I is. that it’s Kenai, had choice little but to remain in place. To children to have a be constant- because she had few financial resources to ly forth is whole- buffeted back and not elsewhere, particularly during move the some, much it no matter how pendency of this case.” done, equality together of time by finding The court concluded that Con- the whiсh children not cross capacity stance had and desire to They crucified. need to have should be meet the emotional and social needs of the stability, place, along with a a sense of Roger, than did any and “that meaningful relationship par- remaining benefit the in children’s Ke- And, I this ents. think that the extent outweighed by nai/Soldotna chil- [was] [the finding Court must make a as to what’s need for а environment stable with dren’s] in the best interest of the ” [Constance].... does so that Constance Holl parent, meeting can better the needs for The trial court’s FINDINGS OF FACT REMAND, love, affection, hereto, daily appendix ampli- ON “A” care and that she fy on its findings oral and written and promote promote can and will this mean- specific include record citations to evidence ingful relationshiр spite Mr. with Holl supporting amplified findings. the problems of the that both sides have recognized and about which she has testi- presented The evidence to the trial court fied as as Mr. Holl to well some extent. sure, Roger is not one-sided. To be So, ruling custody. that’s the on Court’s presented sharp evidence which was con- Constance, presented by trast to that In its FIND- ADDITIONAL FACTUAL light in a cast her evidence less accompanied Rog- its INGS denial to her and more to him. favorable favorable reconsideration, er’s motion for the trial Roger, Had the trial court chosen to believe findings bearing court made several direct- presumption the for shared de- ly custody. placing on It noted that it was legislative by clared particular emphasis and had scrutinized intent in ch. found section SLA carefully testimony most court, approved by might require this ents, testimony much of the of other wit- However, different result. being nesses either cumulative or second to believe on critical mat- chose not weighed hand. It had demeanor ters, denying and set forth its reasons for judged credibility custody, required by of it AS shared as is impressed The trial court was with Con- the evidence in the 25.20.100. Given testimony stancе’s It found demeanor. record, the deference due particularly her to be believable and relied findings and the exercise of its trial court’s testimony on her when it differed from discretion, say that we are left we cannot Roger’s. many It in- believed that and firm conviction that the with a definite stances of abuse Constance recounted had supported are not the evidence actually place. taken its or that the trial court abused broad awarding legal custody to The trial identified non- discretion in sole incidents of (a) cooperation by Roger: Constance. avoidance of ser- (b) process; encumbering vice of his air- is AF- judgment of the trial court order; (c) plane against standing failure FIRMED. maintaining to assist Constance in the fam- home; (d)
ily MATTHEWS, J., denial to Cоnstance of assist- whom RABINOWITZ, C.J., (e) joins, dissenting. regard sewage problem; ance in to a way, “A” APPENDIX their then a court can conclude that is how will behave in the future.1 REMAND FINDINGS OF FACT ON Examples Roger uncooperative, Holl’s disparaging abusive and conduct can be expand This court has been asked to appeal transcript found the record on at supporting fact 207-12, 214, 240, 245, pp. 246-47, 249, 424- ruling that Holl have sole Constance 25, 432, see, record, pp. 1255-59. Also at custody of the Holl rather than 41-50. ordering “joint legal custody” of [shared] Specifically, Supreme the children. To the extent that and emotional inquired “alleged” Court has how instances disparagement abuse were demonstrat- suitability of abuse affected Holl’s Holl, ed his conduct toward Con- *4 “joint as a custodian” of the and in taught stanсe front of the children post separation whether conduct tends to anyone, how not to behave toward support “joint custody.” family much less a member. proper This found it to bifurcate Parental misconduct in Holl physical custody but front of the Holl children is described legal custody. not the The custodial 207, appellate pp. record transcript at regardless sharing whether there is a also, appellate and 1265. See record ent— of legal custody determine such 41-50, pp. esp. p. [pretrial affidavits —will things wear, as what the children eat and part by stipu- were made of the trial record home, daily responsibilities around cur- lation of counsel.] fews, attends, what school the child spousal support The lack of within the extracurricular activities of the child. i.e., marriage, help failure to maintain the Among significant the matters of concern home, incident, etc., sewage demon- parents ought in which both to be involved strate a failure to communicate de- permission marry include age to before self-righteousness. structive These fail- approve surgery, whether to elective ures to aid his children’s welfare demon- sсhool, whether to remain in what to do Roger's tendency strate to let his emotions school, high after and what to do get in way acting of inter- best these, property. permission child’s Of ests of the prac- children on fundamental marry requires approve. both aspects every-day tical life. This court generally only require other matters person cannot conclude that such a parent’s approval unitary one even in a authority share primary, day-to- with the family. day requiring legal custodian on matters It is seldom that exercise these authority. “legal” responsibilities any family. The Roger’s post-separation conduct does not rarity powers of the need to such exercise lead to a different result. The record re- significance does not diminish the sеeking phys- flected that was exercise, moments of their and underscores legal custody ical and and did so to the importance of them the child. point discouraging opposing Con- given joint legal custody was not plan stance’s to move to where she could past only
based on his employed profession. behavior. The basis in her See tran- predicting prior expe- human conduct is script pp. 1299-1300. This behavior rience and parent common sense. When a unwilling- further demonstrates his domineering, physically others, been and emo- ness to accommodate a trait which abusive, tionally disparaging others, necessary is for effective shared cus- generally uncooperative they got tody. unless 7, 1988, ("The physically para.
1. This court found many Holl 1. court believes that emotionally abused Constance Holl. See of the instances of abuse recounted [Constance] Order on Defendant’s Motion Reconsidera- actually place.”) took Findings, tion and Additional Factual November reasons, these this court finds that legal custody inappropriate in this case. inability inadequacy and to co- Parenting day August, Dated this 3 at ap- thoughtout the operate is demonstrated Anchorage, Alaska. record, including transcript pp. at pellate 236-37, 436, 72-74, 219-22, Peter A. /s/ Michalski PETER A. MICHALSKI above, Despite the Mr. Holl has “stan- Superior Judge Court parent of a non-custodial dard visitation” inter- promote order to the children’s best MATTHEWS, Justice, with whom This court—and the law—believes est. RABINOWITZ, Justice, joins, Chief parent important for non-custodial that it is dissenting. significаnt meaningful relation- to have believe abused its discre- children, not as a benefit or ships with their case; tion in this that the court’s decision it is in the parenthood, but because to award sole to Constance Holl interest of children to know their factor;1 impermissible was based on an improperly weighed and that the court oth- physi- has observed making er factors in its determination. See custody may cal not be shared all cases. Julsen, Julsen that, subject to the It has also stated rubric *5 1987); McClain, v. 716 P.2d McClain child,” of the “best interests 384 parents opportunity should “have the both guide nurture their children.” The to fact, In Judge his oral of Michal- opportunity parents intention that have the suggests ski that the decision not to award being guide to and nurture is fulfilled when custody partially shared at least rеsted on parents exercise visitation. non-custodial opinion stability his general, achieved for when a The has found Holl and Con- single parent custody. Majority See Holl to have demonstrated an inabil- stance Op. at 381. He stated that ity co-parent, coop- cannot because think, important, it’s for children to erate. It has found that Holl can place. constantly have a To be buffeted parenting sustain a non-custodial role wholesome, and forth is not no mat- back through “standard” visitation. The court done, ter how much be requir- has found that when serious issues equality together of time is not the cross ing responsibility the exercise of should crucified. which children arise, duty wholly reside should stability, of They need to have a sense primary parent. custodial The rеcord dem- place, along meaningful relation- with a uncoopera- acts in an onstrates that ship with both manner which can be ex- tive abusive specific bickering demonstrates a pected to surface contentious Id. This statement bias, favoring very single contrary presumption to the at the times when calm and a custody,2 sufficient to war- voice of reason are most needed. For shared which is cases, Johnson, (Alas- propriate it is the intent of the 1. See Johnson v. 564 P.2d 76 in all Carle, 1977) (tender doctrine); years opportu- legislature parents ka Carle v. that both have the (Alaska 1972) (benefit nity guide of and to and nurture their child culture). equal assimilation into dominant the child on an foot- meet the needs of beyond support ing of or the considerations Relating Custody, custody. 2. See An Act to Child ch. actual 1(a), Bell, added); SLA 1982: § (emphasis Id. Bell 1990) (legislative joint intent "favors (a) generally finds that it is custody legal custody, regardless physical of frequent desirable to assure a minor child continuing 25.20.090(3) arrangement”). requires that AS after the contact stability home "the the court consider separated have or dissolved their mar- likely offered each environment to be riage public and that it is in the interest to Judge preference sin- Michalski’s towards encourage rights ent.” parents to share the and re- contrary gle parent custody to this also runs sponsibilities rearing. child While actual of custody may practical ap- statutory physical not be mandate. abuse, restricting it would have favored for reconsideration. John- rant a remand 76; Carle, son, Roger’s unsupervised physical custody 503 P.2d at P.2d at of Instead, Judge the children. Michalski agreeable stated that he would be evidence that The lack of sufficient though, following physical custody, even preferred, not be custody shared reasoning, physical custody the court’s however, me to believe that we leads father could create undue concern for weighed The triаl court should reverse. the children’s emotional or wel- against the recommenda- of fact fare.5 The court’s broad endorsement of custody investigator, Yeo- tion of the court Roger, physical custody by demonstrates tis, years of over two and a record that the court did not consider there to be which even Con- successful Giving an actual threat to the children. Without agreeable.3 prop- stance found threat, clearly such a it was erroneous to weight presumption er to the favor by weigh against Roger.6 trial court erred this factor custody, shared denying custody on this record. shared reasons, I For the above would reverse majority lists six “incidents of non- decree and remand with di- cooperation.” Majority Op. at 381. These joint custody arrange- rections to fashion a suggest non-cooperation related incidents ment. proceedings, not child rear-
to the divorce
ing. non-cooperation While evidence rearing
that is unrelated to child can be
relevant, degree relevancy depends non-coopera- the inference that such
tion would extend to the welfare of the bar,
children.4 In the case at there is no indication that had failed to CLUCAS, Appellant, Robert J. regard regarding cooperate in to decisions upbringing. Roger actually the сhildren’s willingness to defer to Con- exhibited Alaska, Appellee. STATE of important stance on issues. Yeotis con- No. A-3692. ability cooper- firmed Appeals Court of of Alaska. regard children. ate with to the mentions, The trial court also in its Find- July ings Remand, danger potential of Fact on of emotional and abuse
towards his children. If the court was concerning
convinced of its conclusions 3. Constance went on to state that "Roger thеy may has— wisdom that have the to exercise fairness, spent a in all he has lot of time with over their children." lot, boys past year the they in this and done a and and—and more, adjusted have to his home only examples 6.The record contains two So, reaching long point. we are as we as allegedly what is the use excessive force community, are in the same I like the against the сhildren. The first was that time.” discipline had used a belt to one of the children. second, pushed 4. See AS 25.24.150(d) ("[i]n one of the awarding custody ground. the court directly consider those factors that children to the child"); well-being affect the see alone, examples, of these taken estab- Neither Marriage, also In re Moore’s danger the children or lishes that (Colo.1975) (mother living with man to whom disciplines harshly. even that he them too Be- imposition she was not married was of courts this, yond the conduct found relevant to the standard, relating own and was not conduct problems in the trial court relates more to children). the welfare of the relationship problems spousal between than to 5. The court stated that “if the parties are able to and his children. the father work it out so that it continues to be one week week, parent and one that is a certain kind of