*1 II. argues
Pacific com- Cascade Chena misrepresentation
mitted negligent water and lines to availability sewer project, construction a letter sent president
from the of Chena to Pacific Cas- 24,1976.
cade on March findings against
rendered Cascade Pacific
on this question. question letter in did
not specific refer to site at water any which available,
and sewer merely lines but proposed
referred to “the location.” found that “it could have Park,”
easily Burgess referred to Industrial
i.e., project to the general area in which the
was to be constructed. reviewed have the evidence
which upon bears court’s find
ings. We will not discuss that evidence at
length, for satisfied we are that the court’s
findings negligent as to misrepresentation
were not clearly erroneous under Rule Civil
52(a). Therefore, judgment must be
affirmed in entirety. its
AFFIRMED. MOREL, Appellant,
Louise A. MOREL, Appellee.
Jose M.
No. 5706.
Supreme Court of Alaska.
July *2 thereafter,
Shortly Jose sepa- and Louise rated. Louise established her own resi- Anchorage dence in with few Nicholas. A later, parents’ months Jose returned to his Florida, taking house in Nicholas with him. Nicholas with stayed early Jose until brought at which time Louise him back to Anchorage. living Louise was then with Shoemaker, (now husband). Carl her fiance son, Louise and Carl Shoemaker have a Chad, year who old was one at the time trial.
In Louise filed a di- February vorce and Nicholas. matter Although came to trial in December 1980. Jose the award contested Louise, his contacts with were Nicholas throughout period. minimal this trial, At issue principal unresolved was whether of Nicholas should be Weller, Legal Suzanne Alaska Services awarded to or Louise Jose. The Corp., Anchorage, appellant. Nicholas, ad litem for the court Huntington, Karla F. Anchorage, guardi- investigator, the psychiatrist and who ex an ad litem. parties amined the and Nicholas recom appearance No for appellee. mended that be awarded to Louise. Their upon recommendation was based BURKE, C.J., RABINOWITZ, Before and Nicholas’ strong attachment to his mother CONNOR, COMPTON, and MATTHEWS upon and half brother and Louise’s capabili JJ. parent. They awarding ties as a believed custody to Jose would not be in the best OPINION interests of because of of Nicholas the lack COMPTON, Justice. a parent-child relationship between two brought This is an appeal by Louise Morel inability and because of Jose’s his to fulfill portion from that of a divorce decree son’s emotional needs.
awarding custody parties’ son to the Morel, Velgeca ap- Jose and his father, Jose Morel. peared at the trial. Both testified in favor awarding the court custody to Jose.
I. FACTUAL AND PROCEDURAL
The court
that although
BACKGROUND
decided
Louise
parents,
and Jose are
fit
both
it would
in
Louise and Jose
were
Morel
married in
the best
interests
Nicholas to award cus-
Miami,
time,
At
Florida.
Jose,
tody to
with reasonable and liberal
was
Louise
seventeen
old
years
and Jose
rights
granted
visitation
Louise. The
son, Nicholas,
was nineteen. Their
produced
found that
evidence
Approximately
born
year
one
af-
trial
indicate
tended to
that Jose had on
birth,
ter Nicholas’
Louise
Jose moved
occasion in the
inflicted
Anchorage.
past
physical abuse
They left Nicholas with
upon Louise,
parents
but that there was
Jose’s
until
no evidence
they
Florida
settled,
months,
of any potential
which took
three
abuse
Jose upon
about
Nicho-
brought
then
las.
Anchorage
Nicholas
The court also found that the evidence
them.
produced at trial revealed that
“has
Louise
problem
(5)
psychological
may
length
a severe
of time the child has
parenting
affect her
abilities” and that
stable,
lived in a
satisfactory environment
may
type
language
have some
desirability maintaining
conti-
comprehension problem needing attention.
nuity;
appeal
Louise filed this
and obtained an
(6)
ability,
the desire and
par-
each
granting
order
her interim
*3
ent to
an open
frequent
allow
and loving
support
argues
child
for Nicholas. Louise
relationship between the child and his
that the
court abused its discretion
parent.
other
by finding that
in
it was
the best interests
The superior
findings
court’s
of fact and
of
to
custody
Nicholas
award
to Jose. Jose
of
conclusions
law indicate that these fac-
responded
has not
to
arguments
Louise’s
or
tors, all which weigh
in favor of custody
to
appeal.
agree
the
We
that the
being
Louise,
awarded to
given
were not
awarding
in
custody
erred
to Jose and
sufficient
consideration.
the reasons set forth below we reverse
judgment.
the
The testimony presented at trial in
dicated that Jose has had little contact with
II. THE CUSTODY DETERMINATION
his
early
son since
1979 and that the rela
reviewing a superior court’s
When
was,
tionship
most,
between them
at
a weak
matter,
a
give great
decision on custody
we
one.
psychiatrist
The
and the
in
weight
the
experience
to
court’s
and evalu
vestigator testified that Jose would have
ation of demeanor testimony. Horton v.
difficulties fulfilling Nicholas’ emotional
Horton,
1131,
(Alaska
519 P.2d
1132
1974),
needs, if was
do
he
able to
so at all. It was
Sheridan,
citing
821,
v.
Sheridan
466 P.2d
also apparent that Jose and the court ex
(Alaska 1970).
824
The
court’s dis
pected
Jose,
Jose’s
rather than
cretion, however, is not unlimited. As we
primarily
would
care for Nicholas if
stated in Horton v. Horton
stated,
to
awarded
The
Jose.
On review we must determine whether
Jose,
you,
“And
Mr.
I have this observation
abused,
that discretion
been
perhaps
has
make,
to
if you
have your
didn’t
moth
by assigning
great
too
a
weight
some
er
in the
standing
ready
kitchen
to perform
ignoring others,
factors while
perhaps by
elevating
all
necessary
might
the
the
the
par
interests
one of the
services
result
ties
dispute
child,
to the
above that
the
Yet,
have been different.”
there
limit
perhaps by
a
making
clearly erroneous
ed evidence in the
regarding
record
the
with
finding
respect to some material is paternal grandmother’s parenting abilities
sue, or perhaps in some other manner. or
relationship
her
with Nicholas. Mat
Cf.
519
P.2d
Matson,
(Alaska 1982).
son v.
cordance the best interests of the litem, investiga ad of the parent pref- child. Neither is entitled psychiatrist tor and established that of the as a right awarding erence matter of very good, loving a relation determining of the In had child. capable best child ship interests the court shall with his mother and that she is all including: consider relevant factors his do fulfilling needs and wishes to so. (1) emotional, mental, Furthermore, physical, re- the evidence indicated that ligious child; needs social relationship with his Nicholas had close
(2) brother, the capability and of each half is desire Chad. This a factor that parent needs; to meet these should been court. have considered
(3) the child’s preference; have held that consideration should (4) given desirability of keeping the love to “the existing and affection be- tween the child each parent; together they family children of the so that
608
McBride,
306;
639
condition of child-
P.2d at
enjoy
Bonjour
the normal
may
v. Bon
jour,
667,
up together
566
(Alaska
as brothers
P.2d
669
growing
hood
1977); Ho
Rhodes,
v.
Rhodes
370 P.2d
Horutz,
397,
(Alaska
and sisters.”
rutz
560
v.
P.2d
401
902,
1962).
v.
(Alaska
Craig
See also
1977).
has
undisputed
It
is
that Louise
303,
McBride,
(Alaska
1980;
306-07
639 P.2d
January
been in
since
has
therapy
she
Nichols,
1982);
516 P.2d
Nichols v.
this
plans
benefitted from
treatment and
(Alaska 1973).
though Nicholas
Even
continue it. The three neutral witnesses
brothers,
only
Chad are
half
rather
than who
the trial
testified at
were aware
siblings,
full
“that the nature
we believe
past
they
Louise’s
difficulties and
focused
relationships
existing
the child’s
should be
problems
any
on whether
would have
these
significant
choosing his custo-
factor
impact
unan
parenting ability.
on her
Carle,
503 P.2d
dian.” Carle v.
opinion
psychiatric
imous
was that Louise’s
McBride,
(Alaska
Craig
also
1972).
See
problems
any significant
have
im
do not
*4
custody hearing; basis of the CONNOR, Justice, dissenting. is the best interests determination of the child conduct is court was parent’s and a rele It is obvious that the vant de- problem it only expect insofar as has or can be confronted a difficult ed to case. custody question in this negatively Craig termining affect the child. psychiatric problems appear Louise’s to be factors,
one of the among many, main
which led the court to its conclusion that
custody should be awarded Jose. The periodic
court provided investigations made to the care that Nicholas would father,
receive while in the of the
and while in visitation status with the
mother. provided Thus means was
whereby determination could be
reassessed appar- as future needs became
ent. my reading
From I am record
unable that in a num- balancing conclude
ber of factors court committed Therefore,
an abuse of discretion. I would
affirm. *5 WOLF, Appellant,
Richard Weed, Defender, David Asst. Public Be- Alaska, thel, Fabe, Appellee. Defender, Dana STATE of Public An- chorage, appellant. for No. 5882. McConnell, Dwayne Atty., W. Asst. Dist. Appeals Court of of Alaska. Stephen Hutchings, Bethel, Dist. Atty., Condon, Gen., Wilson Atty. Juneau, L. July 1982. appellee. Rehearing Denied Sept.
OPINION BRYNER, J., Before C. COATS SINGLETON, JJ.
SINGLETON, Judge. indicted, tried,
Richard Wolf and convicted of Assault in the De Third gree, 11.41.230(a), felony. a class AS C Having felony previously been convicted of assault, Wolf was second sentenced class presumptive offender. term for a C felony years. second offender is two 12.55.125(e)(1). parties gave See AS Both 12.55.155(f) pursuant notice evi- to AS