*1
145
discovery
clearly
on the
engage more
indicates that his counsel knew of
tion to
of excuse. This issue is
13, 1988,
Bank’s defense
by July
approximate
this defense
points
appeal.
from Braun’s
on
omitted
ly thirteen months before the Bank filed its
argued
this issue was
After the Bank
cross-motion for summary judgment. Giv
abandoned,
Braun tried to resuscitate
en that Braun
discovery
conducted no
on
He
appeal
reply
of the denial in his
brief.
all,
this issue at
Braun
dilatory
and it
re B.L.J.,
376,
P.2d
381 n. 5
cites In
717
was not an abuse of
deny
discretion to
him
Mannhalter,
(Alaska 1986), and
v.
Winn
56(f).
the benefit of Rule
Jennings
See
v.
444,
(Alaska 1985),
708 P.2d
449
for
State,
1304, 1313-14(Alaska
566 P.2d
1977)
proposition that
the issue has been
“[i]f
(Alaska
56(f)
R.Civ.P.
liberally
will not be
appellee
and the
and the
are
briefed
Court
applied
parties
to aid
who have been dilato
in is
sufficiently informed of the matters
ry); Munn,
641 P.2d 213 n. if
Even we choose to reach the discovery,
merits of the denial of additional
the trial court did not abuse its discretion. Bay Housing Authority, Munn v. Bristol LONG, Appellant, A. (Alaska 1989). Plenty 111 P.2d evidence exists that Braun was on notice argue that the Bank would his termination LONG, Appellee. Dennis A. stemmed from a reduction in force. Braun No. S-3758. knew Bank’s reduction in force de early fense as as Paul- 1982 when October Supreme Court of Alaska. son responded to Braun’s discrimination Aug. 1991. complaint Anchorage filed before the Equal po Rights The Bank’s Commission. Rehearing Denied Oct. consistently through sition was maintained pro out proceedings, those as well as
ceedings before the Alaska State Human
Rights
deposition
Braun’s
Commission.
may
justify
opposition,
pleading
the court
refuse
ment on allocation of the burden of
judgment
may
application
good
order a
proving
cause in an action for termi-
permit
continuance to
affidavits to be ob-
employment
nation
anof
contract for an indefi-
depositions
discovery
to be taken or
tained or
to be had or
Davis,
City
Skagway
nite term.
School Bd. v.
may
make such other order as is
(Alaska 1975)
222-24
overruled on
just.
Ketchikan,
grounds,
City
other
Diedrich v.
(Alaska 1991),
employ-
P.2d 362
we held that the
argues
proof
6. Braun
the burden of
under
proof
regard-
pleading
er had the burden of
ValleyMedical-Surgical Group,
Eales v. Tanana
ing good
Inc.,
employment
(Alaska 1983),
cause in an
contract for a
Cheri C. Miner, Anchorage, appellant. & RABINOWITZ, C.J., and Before BURKE, MATTHEWS, COMPTON and MOORE, JJ.
OPINION BURKE, Justice. physical court ordered sole legal custody of the four minor chil-
dren in this case from their moth- er, father, Regina Long, to their of her own. young an two children ordered Re- with superior court also Long. The early in late 1988 or Additionally, either support. Long pay child gina Turinsky plans to Regina and made appeals. Long relocate, younger Long chil- with the three dren, Anchorage I from to Juneau.1 upset proposed demonstrably several move Long were married Regina and Dennis the children. 26, 1973, July and divorced on May on relationships Dennis and new four chil- marriage produced 1987. The children. significantly affected 7, 1973; Re- Virginia, October dren: born side, the children had a positive On the 4, 1976; becca, Gregory, born June born great supervision in each deal more adult Jonathan, 18,1980; January born April side, negative the new household. On the divorce Regina, plaintiff participants new relationships added two custody of the sued for sole proceeding, household, ongoing an In each feud. for sole Dennis counterclaimed children. openly disparaged the other house- adults custody. guardian hold. The children’s ad litem A. Mi- Judge Peter September practice particularly found this harmful to two-day hearing to ad- chalski conducted Additionally, the children.2 all four adults At the close claims. judicate struggle became to dictate involved Judge Michalski ordered hearing, *5 minor details in the visitation scheme. One Long children. Den- custody of the divided couple might accept refuse to the children daughter, custody of the oldest nis received time; except at a certain location and custody of the Regina received Virginia; respond by deliberately couple other would younger children. three loca- depositing the children at a different custody proceed- Longs’ divorce and period For tion at a different time. one ings very acrimonious. Unfortunate- were months, flatly refused eight Dennis about custody arrangement did noth- ly, the new all. take the children for visitation at Instead, acrimony. ing to alleviate Meanwhile, Regina’s in household the continually fought over Regina and Dennis access to the adults limited the children’s child-care, visitation, and property-division, prevent them from telephone in order to child-support Regina returned to issues. Testimony indi- talking to their father. 1988, during obtaining several times Regina court at least one occasion cated that on against support Dennis for child orders Turinsky telephone a be- and disassembled attorney’s in arrears and fees. payments leaving children at home alone. fore months, and claims of his Dennis raised defenses a court order many For even when proceeding. Regina Turinsky in each to allow tele- required own and the chil- phone contact between Dennis and Meanwhile, Longs’ personal lives dren, Regina Turinsky recorded and and 1987, Regi- In changed considerably. late calls. monitored all such in younger children moved na and the three 30, 1989, January Dennis August Finally, In on Turinsky, Jr. with Albert J. se, filed a Motion 1988, Long, Long, appearing pro Dennis married Wanda a wom- Regina years. GAL does not believe two not clear from the record whether 1. It is Turinsky initially parents announced their to relo- able to focus on the and intention were Juneau before or after Dennis moved for process cate to change to their children harm done custody. Turinsky decided to relo- fighting the children have had All each other. study paralegal he could for a certif- cate so that [Virginia] nightmares has se- and anxieties. specific academic ambitions moti- icate. Less regressed problems, with Jon vere behavior to relocate. vated decision Greg training point, at one and both toilet well-being. parents' It Jon feared for their report guardian children’s ad litem filed a 2. The appears all 4 adults contribut- to the GALthat the adults’ continu- that criticized the effect of that all 4 have to this. The children state ed report ing dispute on the children. The states: negative the other comments about made side, and the children’s state- File information issues, resulting custody in about and/or children have been ments indicate that the guilty. feeling pressured and the children great past placed duress in the under a deal of requested II Change Custody in which he custody him court award custody A child or visitation award 1989, August children. of all four if “may be modified the court determines D. Carlson conducted five- Victor change requires that a in circumstances day hearing on Dennis’ motion. On the modification of the award and the modifica day hearing, Carlson ren- last in tion is the best interests” of the children parent chang- of decision involved. AS 25.20.110. The mak dered an oral statement ing the motion for modification physical custody” of the ing legal “sole proving bears the burden of a substantial Dennis. The court four children to change of circumstances as a threshold Regina with granted also liberal visitation Cox, matter. Lee v. “optional” younger the three children and (Alaska 1990); Garding Garding, Virginia.3 The court did not visitation with (Alaska 1989). 184-85 P.2d Once the findings.4 issue written burden, movant meets that he or she is August Some four weeks after the whether, hearing entitled “to to consider hearing, again were circumstances, light changed of such isit court, arguing many first of motions in the child’s best interest to alter the exist they file the end of would each before Lee, ing arrangement.” custodial year. Among Regi- these motions was proof at 1361. The burden of remains on na’s Motion for Reconsideration parent making the motion to “demon order, which Carl- circumstances, strate that the con son denied on 1989. Also on December conjunction sidered with other relevant December Carlson ordered bearing upon facts the child’s best inter ests, pay support existing to Dennis in warrant modification of the child custody decree.” Id. per the amount of one hundred dollars per month. child reverse the court’s or We will trial *6 modify custody only der to if “the record 20, 1989, following day, The December if shows an abuse of discretion or control filed, seal, Regina a Motion to under Set ling findings clearly factual are errone Modifying Custody Aside Orders and to 381, McClain, ous.” v. 716 P.2d McClain Assigned Judge. Recuse Trial The motion (Alaska 1986); Gratrix, 384 v. 652 Gratrix alleged impro- appearance for recusal an of 76, (Alaska 1982). P.2d 79-80 Abuse of Judge in priety way Carlson had han- custody may in discretion child cases occur case, pointing specifically dled the to as- when, decision, reaching in its the trial pects custody hearing modification factors, improper court considers fails to parties’ multiple and to decisions on the factors, statutorily consider mandated September motions and cross-motions in gives weight too much to some factors. through 1989. December R.L.B., (Alaska S.N.E. v. 699 P.2d 878 himself, Judge refused to recuse 1985); Carlson Curritt, 636 P.2d Starkweather v. assigned Judge (Alaska 1981); and the matter was to Kar- 1182-83 Deivert v. 27, 1990, Oseira, (Alaska 1981). February en L. Hunt. On 577 Regina Long’s Hunt denied motion to dis- A. Change Substantial Circum- qualify Judge Regina appeals Carlson. stances custody, sup- Carlson’s child child decisions, port, and recusal court’s oral statement of disqualify Judge findings Hunt’s refusal to Carlson. decision contains four factual circumstances, Virginia’s custody constantly 3. status shifted af- retake custo- Dennis should home, hearing. ter the first She left her father's dy Virginia. eventually but returned to the home her father Long. established with Wanda She was still granting a final order 4. The court entered with Dennis and Wanda at the time of the 27, 1989, custody on October nunc custody hearing. modification At the modifica- tunc, August pro that, hearing, Regina Long stipulated tion under Long correctly points out had that Dennis the conclusion support remarriage improve an change of circum- a recent that a substantial shown —as parent’s position none of these Regina argues that ment a noncustodial stances. —is support a findings can controlling justify factual generally not sufficient custody. Gratrix, asserts modify See, P.2d e.g., decision modification. clearly findings erro- Nichols, factual were 82; that the at Nichols neous, superior court’s miscon- 1973). however, Judge (Alaska Plainly, findings factual of all four sideration improve than a mere found more Carlson of discretion. We to an abuse amounted re Long’s position due to ment Dennis disagree. marriage. Judge Carlson’s decision con found Regina’s new household and trasted Regina’s assertions Initially, we consider position, her insofar as it affected “I Judge Carlson stated: clear error. deteriorated, children, Dennis’ had while change in that there is a substantial find criterion, same position, gauged under the the chil- which has circumstances affected transcript of the hear improved. had another has continued for The war dren. support ample evidence to ing contains waged both couple years. It’s been importance finding. particular Of such a pull how to party Each knows parties. report, ad guardian here is the litem’s added.) strings.” (Emphasis other’s Regi problems in repeatedly which noted tenor of the Regina notes that the bitter Turinsky’s related to Mr. na’s household original cus- dispute existed at the disciplinary responsibility. assumption of trial hearing into the tody and entered singled guardian’s report Additionally, the Thus, argues, she decision there. court’s harmful to the particularly as action out acrimony years later could parties’ two Turinsky’s practice of Regina and children This “change” circumstances. not be monitoring telephone calls be taping and point. argument misses the father. the children and tween their finding correctly Judge Carlson’s contrast inclusion of the between Carlson’s very first on the children focuses one factor relationships as the new quoted It is irrelevant sentence above. analysis was not er changed circumstances patterns re parents’ behavior roneous. between constantly contentious mained important is is that and 1989. What finding cir As his third worsened circumstances of the children cumstances, noted that parents’ actions. a result of their See *7 as in Den Virginia, now daughter, was oldest (Alas House, 1207 779 P.2d House v. Long argues Long’s custody. Regina nis 1989) (crucial inquiry was whether the ka originally Judge Michalski that because disturbing potentially a “faced ... child Dennis, Vir custody Virginia to awarded of circumstances”). change in upsetting years home two ginia’s presence in Dennis’ report and the guardian ad litem’s The Again “change.” to a later cannot amount testimony parties and of witnesses of Vir point. Regina’s argument misses ongoing dispute indicate that the at trial all continually changed ginia’s custody status Regina had harmed Dennis and between Virginia’s volun 1987 and between Thus, Judge Carlson’s factu children. custody Long’s tary to Dennis return after not erroneous. finding point on this al a new and established remarried finding his second Judge Carlson stated change definitely represented household follows: as considera worthy of some in circumstances change in circum- especially There’s been additional analysis, in Carlson’s tion party has a new relation- Each stance. status. Virginia’s own regard in marriage. in of a The ship the nature and final fourth Judge Carlson’s Mrs. and Mr. relationship between changed circum support of finding in At least he moved Turinsky, stormy. Regina’s intent “to decision was marriage stances for awhile. He returned out Anchorage community.” from the move Long has remarried. de facto. Mr. 152 fur- par- custodial and threatened to harm the children has held that a
This court may change out of state unless some occurred. Ordi- decision to move ther ent’s change hostility dispute of circum- narily, amount to a substantial between House, itself, 779 as a matter of law. in not parents, stances and of will be con- Certainly the custodial P.2d at 1207-08. change of circum- sidered a substantial six hundred miles parent’s decision to move impact unless the adverse on the stances parent presents a from the noncustodial E.g., Birge Birge, is extreme. v. 34 child include in its factor that the court should (1978). Or.App. 299 The analysis. circumstances hostility parents, effect of between the however, may signifi- combine with other argument that turn We now amount, changes in in cant circumstance to an abuse of dis- Carlson committed aggregate, change a substantial suf- finding in the sum of the cretion change custody. to warrant ficient See changed circumstances this case amount- Clark, id.; 2 also H. Do- see Law change ed to a of circum- substantial States, Relations in mestic the United past, In the we have reviewed stances. 20.9, (2d 1987). at 560-61 ed. multiple changed circumstances to deter- § whether, aggregate, mine supports finding also record justify a reeval- changes were sufficient to Long’s remarriage that Dennis amounted Garding, uation of a decree. See change potentially to a beneficial to the Gratrix, 185-86; P.2d at 767 P.2d at interests, Regina Long’s children’s while Hence, Judge ruling that Carlson’s 78-79. relationship change amounted to a new at changes circumstances in this the four potentially least detrimental to the chil together to a substantial case amounted review, “great weight change initially precedent. on solid dren’s interests. On rests judge’s expe trial must be accorded to the cir- Judge Carlson’s four Of rience to his evaluation of demeanor findings, current status of cumstances Sheridan, testimony.” v. Sheridan daughter, Virginia, receives the the oldest (Alaska 1970) (cited P.2d in Faro Certainly court did not emphasis. least Faro, (Alaska 1978)). it considered abuse its discretion insofar as case, Judge length In this Carlson heard at purposes for this factor alone “substantial” persons from all involved the new rela Virginia’s the other deciding status. On Additionally, guardian tionships. ad hand, language in any do not find report litem’s described the effect of the suggest decision to Carlson’s parties’ relationships new on the children. Virginia’s significant carried current status The sum of these considerations convinces weight analysis younger the three reasonably could us that changed circumstances. children’s im assign significant weight to the total Accordingly, left three we are with n pact parties’ rela dissimilar new changed circumstances factors to consider tionships had on the children. support decision to as Carlson’s *8 change and to the sta- reevaluate Regi- Finally, Judge Carlson found that (1) younger children: the harm tus of the Anchorage na’s intent “to from the move resulting parties’ from the to the children greatly community ... inhibit what we will (2) continuing disputes; parties’ the new case, necessary in know is this that the i.e., relationships, Long’s improved children have communication with their fa- Long’s position in contrast to some- Regina argues ther.” that a six-hundred auspicious posi- less stable and less what city mile move from one to another in Alas- tion; (3) Regina’s proposed and relocation change ka is not a substantial of circum- to Juneau. argument This fails to address stances. noted, ample Judge Carlson’s concern for the children’s As the record contains communication with their father. suggest evidence to that the first factor continued following great significance. parents’ Regina also invokes the state- ment, continuing by Judge made Carlson as he re- feud had harmed the children hearing end of the third children. He parent’s cessed the at the considered each ca- day: pability providing material, “of spir- for the itual and social needs of the children.” He greatly
I’m concerned about the fact that parent considered whether one pretty I think this case is much where would be a it, Judge Michalski found he left it “better role model” than the other. He where changed home, school, I very “stability and don’t see how it’s considered the neighborhood much from then. There’s still all this security” ... of the [and] par- the emotional turmoil between two children. express pref- He considered the maybe Rebecca, ties and the distance of six-hun- erence the second oldest child miles here and Juneau (thirteen dred between will at hearing). the time of the He I reduce some of that. don’t know. considered the importance keeping all of together.5 Judge the children And Carlson Regina argues only that because two wit- also considered the par- likelihood that one nesses testified after Carlson made “promote relationship ent would the statement, Judge reasonably that children” parent. with the other could not have his mind about the impact proposed of the move to Juneau. contends that Carlson ne- disagree. We glected apply mandatory factors of
Regina’s argument ignores reaching AS 25.24.150 in his decision. Long spent Again, disagree. fact that Dennis the entire pro- AS 25.24.150 stand, vides, day hearing in pertinent part: fourth of the on the mainly by Regi under cross-examination (c) determining ... the best inter- protracted testimony na’s counsel. That child, ests of the the court shall consider immeasurably must have added (1) emotional, mental, physical, re- Carlson’s final Long. estimation of Dennis child; ligious, and social needs of the testimony That also must have added to (2) capability and desire of each impact Carlson’s sense of what needs; parent to meet these proposed away move from Dennis would (3) preference the child’s if the child is have on children. the. age capacity of sufficient to form We aggregate, conclude in the preference; affecting younger the factors the three (4) the existing love and affection be- continuing children—the conflict between parent; tween the child and each parents, effect of combined both (5) length of time the has child relationships, new proposed stable, satisfactory lived in a environ- reasonably move Juneau —can be held to desirability ment and the of maintain- change constitute a substantial of circum ing continuity; purposes requisite pre stances for (6) ability par- the desire and of each is, liminary showing. taking That open loving ent to allow an fre- whole, say record as a we cannot quent relationship the child between finding Carlson erred a substan parent; and the other change finding tial of circumstances or in (7) violence, any required in circumstances evidence of domestic abuse, original neglect pro- child child modification of the order. 25.20.110; Lee, posed history AS 790 P.2d at custodial household or a See parents; of violence between B. The Children’s Best Interests (8) that substance abuse evidence *9 Judge listed parent Carlson some six or other members of the either directly factors that led him to decide that a affects the emotion- household child; well-being of in physical the best interests of the al or of the Regina argues Judge argument that since Michalski had this factor. Such an misconstrues the importance Judge keeping considered the of the chil- notion of "due deference." Michalski did together kept dren before he children had to be ordered divided custo- not decide that the apart. dy, Judge Carlson should not have reconsidered Judge (9) the consid- focused on the recent cir- other factors that court Carlson Long pertinent. family of the and con- ers cumstances entirely cerned almost matters of fact that Judge in Carl considerations hearing. first custody arose after directly discussion ad son’s best interests Thus, Regina’s assertion of of discre- abuse in mandatory factors AS 25.24.- dress the point tion on is this without merit. (6) (c)(l)-(3), (9).& No subsections implies Judge in evidence the record that Second, Regina Judge asserts that Carl- should discussed Carlson have subsections by son an committed abuse of discretion (c)(7) (8). Similarly, & evidence in the reweighing psychological report a that had children record indicates that the felt much part in been of the record the first Thus, parents. and affection for both love hearing. Judge Carlson refer in his did Judge failure to discuss subsec Carlson’s psychological decision evaluation (c)(4) comprehensible: is the factor tion Harper. Judge Dr. Carlson stated: was neutral. parties equally I find that both are capable equally far as and limited as Judge only per factor Carlson promoting a the non- relationship with completely haps failed to address is the one it, parent. On of it (child’s custodial the face (c)(5) length in in subsection of time appears Long may that Mrs. have been stable, satisfactory environment desir and that, willing more to do I think that but ability maintaining continuity). of Even underlying I don’t ac- there, there’s an however, changed discussion of cir [sic]— cept it for it’s face value. I notice necessarily ques addressed cumstances edge Long’s certainly in Mrs. voice which tion of environment and found gave pause for I me some concern. went lacking. Judge And arguably, household Dr. Harper’s back and reviewed evalua- finding that Dennis made the Carlson’s Long tion I think that at Mr. is least role for the “better model” children ad likely promote at least as a relation- question desirability dresses the of the ship children with as their mother maintaining continuity. We conclude that I Long is Mrs. and would tend to think Judge properly employed Carlson man likely that circum- he’s more to- in the datory factors of AS 25.24.150.6 stances with which confront- he’s now Finally, Long asserts in ed.... analysis interests best Carlson re- decision, In this portion of his Carl- weighed two items of evidence that had appears rely upon son psychological in original before Michalski been parties evaluations of the of the chil- First, custody hearing. Regina asserts Harper prepared dren that Dr. James F. hearings, that a witness at both Pame- Ms. original custody pro- for the court Yeargan, la testified “to the same facts” at ceeding. hearings. This assertion both is inaccu- rate. that a Regina correctly argues expressly
It is true that
court considering custody modification
“great
gave
weight”
findings
to Ms. Yeargan’s
great weight
in- must
accord
to the
family’s
sights
hearing.
into the
original custody
circum-
in the
court
Furthermore,
80; Nichols,
Yeargan’s Gratrix,
stances.
Ms.
P.2d at
opinions
insights,
expressed
Furthermore,
as
im
at 735.
consideration
necessarily depended
weighting
hearing,
proper
improper
second
an
factors
upon
part
experience
her total
discretion.
may
with the
factors
constitute abuse of
Nonetheless,
80;
Long family.
Deivert,
Gratrix,
P.2d at
most tell-
Thus,
ing passages
good
her
testimony
at 577.
asserts with
before
“changed
6. We also conclude that
that
stances,
must find
circum-
Carlson’s find-
trial court
conjunction
ings specified
negative
effect
with other
considered
bearing upon
pre-
on the
best in-
circumstances had
children
relevant facts
terests,
the child’s
cisely enough
bring
existing
his decision within the
warrant modification of the
cus-
Lee,
decree").
requirements
(holding
tody
155 Conduct, 2. 3 Canon Canon an Judicial Judge Carlson committed that reason in a reweighing requires judge “disqualify Dr. Har- himself a of discretion abuse However, the con- impartiality might in his per’s proceeding evaluation. which “[i]n decree, this custody including a modification in- reasonably questioned, text of ... be assess whether applied to analysis (a) must be personal a where ... he has stances changing in justified superior court was concerning party.” a Id. prejudice bias determination.”7 previous custody 3(C)(1). Regina argues also that at Canon discre- Gratrix, at 80. Abuse of 22.20.020(a)(9), Judge violated AS Carlson therefore, point, does subsidiary tion on a acting any judge a from which forbids of discre- necessarily in an abuse not result that, judge “feels for matter in which the in the ultimate decision. tion reason, impartial fair and decision any a given.” be cannot refers Judge Carlson Significantly, he evaluations psychological to the after Judge Regina’s assertions that Carlson Regina Long about refers to conclusions and the statute violated the two Canons response Regina’s court he drew in that Long rely upon following facts: Dennis edge in Mrs. “I room demeanor: notice Anchorage police officer and a wit- is an gave some Long’s certainly me voice which custody called at the modifica- ness Dennis Judge agree that pause for concern.” We Chapman, po- hearing, tion Officer was two-year by relying on the erred Carlson had involved a brief lice officer who been for prepared psychological old evaluations investigation Judge police Carlson hearing. do not original custody We pro- Spring alone do not 1989. These facts however, Judge had no agree, that Carlson Regina’s for ar- vide sufficient foundation deciding that Dennis would justification for gument here. promote a likely than be more Anchorage newspapers major children and the The two relationship between the supports Spring in the record information about the ex-spouse. Evidence did not reveal wary response Regina. police investigation of Carlson Carlson’s that, improper Consequently, conclude 1989. Noth- public to the until December notwithstanding, consideration of a factor ing suggests in the record that Carl- did not commit an abuse Judge Carlson at the time of the son himself was aware in his ultimate decision. discretion hearing August custody modification investigated him or that police had Ill in- had been Chapman he knew Officer 1989, Judge investigation. issued Nor does In December in the brief volved case, including that, rulings in this the time of the suggest several the record at for Reconsidera- police denial of Motion hearing, custody modification pay- against Regina for tion and an order in investi- any further interest maintained day after support. of child Moreover, ment gating Officer Judge Carlson. rulings, Regina those Carlson issued to is- testimony relevant Chapman’s seal, filed, a Motion to Set under interests sues related to the best Modifying Custody and to Aside Orders Turinsky had Mr. children in this case. Assigned Judge. Trial Carl- Recuse city Chapman on a worked with Officer refused to recuse himself. son Chapman’s testi- commission, and Officer hearing custody modification mony at the argues Judge Carlson violat- knowledge personal mainly concerned of Judicial 2 and 3 of the Code ed Canons Chapman’s Turinsky. Officer Some recuse him- he refused to Conduct when impeached testimo- testimony significantly judge that a should self. Canon states offered at Turinsky had earlier ny himself appearance impropriety and avoid hearing. Alaska Code the impropriety in all activities. to con- Gratrix, led us example, stantial of circumstances” court’s order was modification to the initial clude that to accord due deference failure custody findings Gratrix, P.2d at 84. any discretion. sub- an abuse of and the "absence of
156
words,
In
review of the
himself.
other
judge’s refusal to dis
“[a]
a
“[W]here
unreasonable,’
any unfair
fails to reveal
‘patently
record as whole
himself is
qualify
reverse,
[proceedings]
in cases ‘where
conduct of the
...
ness in the
will
but
we
bias,
partiality is in
alleged
of
instances of
con
only
appearance
and the
showing’
require
‘greater
individually,
collectively
we will
or
volved’
sidered either
Corp. v.
Alaska Trams
any specific
for reversal.”
bias or
to demonstrate
fail
350,
Power, 743 P.2d
Light
Alaska Elec.
&
pattern of bias.” Alaska
generalized
(Alaska 1987)
v.
(quoting Amidon
n. 7
353
Trams,
lows: Division, 792, port Enforcement younger Visitation with the three chil- (Alaska 1989). Regina argues further dren, Christmas 1989 for the two week that under the shared formula period expense, Spring at the Plaintiff’s 90.3, pay sup Rule Dennis should her child 1990, Long vacation with Mr. then port. years. that’s reversed over the Summer July through visitation 1990 from Au- The appears visitation decree on its face gust Rebecca, boys 25 for the two and if grant Regina potential visitation for at chooses, expense.... she so at shared thirty percent year least of the when the testimony “seventy-two
We need to decree awards have some hours out of ten-day period,” capacity any indication about of Mrs. ... in the event that Long pay support.... child Anchorage When in has moved out of the community hand, the same community. part Mrs. would the other On visitations, governing have alternate weekend alter- the court decree visitation in the birthdays, Friday nate weekend event that remains in the Anchor- —the Friday p.m. through age would be from 6:00 community specifies just for visitation Sunday p.m. at 7:00 If not in slightly thirty percent the same less than of the community, visiting, year.11 if she is back here 90.3(a) 90.3(f). provides guideline requirement
10. Civil Rule a basic R.Civ.P. Prior to support parent percent. awards of child when one had been 25% The 1990 amendment primary physical custody has sole or undoubtedly of Rule 90.3 constitutes a material 90.3(b) imposes child. Civil Rule a more com- change in circumstances sufficient to allow a plex calculating parents’ sup- formula for both parent sup- to move for modification of child port obligations parents when "the are awarded port. Support Charlesworth v. Child Enforce- physical custody by para- shared as defined Division, (Alaska 1989). ment (f).” (f) graph Paragraph Id. states that Consequently, original support even if the child factor, parent physical custody employed [a] has shared of chil- order should have the 25% purposes January dren for of this rule if the children after 1990 that order would have parent period specified reside with that for a subject according been to modification to the writing percent year, Thus, of at least 30 30% factor. we now review the trial regardless legal custody. of the status of support light court’s order in of the 30% factor. Id. award, supreme January including 11. The court’s A court order effective visitation sum- vacation, vacation, imposed requirement Spring the 30% in Rule mer Christmas or 1008; Supreme holidays birthdays, yields 90.3. Court Order Alaska alternate a total witness, Harper visitation de If Dr. court’s available as testimony ambiguous. Regina former ex- unacceptably is could have been cree hearsay. court calculated cluded as Alaska R.Evid. contends that when the However, 804(b)(1). obligation ignored objection the shared this was not support her it 90.3(b). appeal trial it custody provision Rule raised court or on Taking therefore, Further, is, I do not record confirms that contention. waived. whole, relying the majority opinion the record as a we conclude understand as *13 coordinated, or superior improperly hearsay court on as a basis for its conclusion that coordinate, sup erred. failed to the visitation Carlson Accordingly, in this port awards case. of child
reverse the court’s awards
support and remand the case visitation and
for redetermination those issues.12 Cal support
culation of child shall conform trial requirements of Rule 90.3 and the make
court shall its actual calculations of record. If fixes visita
matter the court parent thirty at WASSILIE, tion with noncustodial Appellant, Michael percent year, or more of the the court also begin presumption with should ALASKA VILLAGE ELECTRIC 90.3(b) custody provision of Rule shared INC., COOPERATIVE, applies support. to the of child calculation Appellee. part AFFIRM REVERSE We No. S-3932. part, and REMAND trial court for to the proceedings further with this consistent Supreme Court Alaska. opinion. Aug. 9, 1991. MATTHEWS, Justice, concurring. agree today’s majori-
I with result
ty opinion. agree reasoning I also with the opinion except for the dictum that
“Judge by relying erred on
two-year psychological pre- old evaluations
pared original custody hearing.” for the view, Op. my
Majority at 155. those
evaluations were relevant to the issues of
whether there was a of circum- and the of the chil-
stances best interests
dren. Relevant evidence is admissible ex-
cept prohibited constitutionally, it is where
legislatively, or rule. Alaska court opinion 402. The no majority
R.Evid. cites statutory provision
constitutional or or rule prohibit psy-
which would admission of
chological evaluations. days per year. approximately parent, visitation with liberal visitation to the noncustodi- days is parent, agree. Upon 30% of 365 109.5. al mand, feasible. We re- very carefully pre- the court should pri-
12. The visitation decree in this case is of cisely fix the terms of visitation to facilitate mary importance. Throughout history of chances that the schemes and visitation courts, litigation guardian this divorce best will work in the interests of the children. parties agreed that ad litem and the only have all legal one an award of sole