Francesca S. v. Shawn K.
| Decision Date | 08 September 2021 |
| Docket Number | S-17527 |
| Parties | FRANCESCA S., f/k/a FRANCESCA K., Appellant, v. SHAWN K., Appellee. |
| Court | Alaska Supreme Court |
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court of the State of Alaska, No 3DI-16-00105 CI Third Judicial District, Dillingham Christina Reigh, Judge.
Deborah Burlinski, Burlinski Law Office, LLC, Palmer, for Appellant.
No appearance by Appellee.
Before: Bolger, Chief Justice, Winfree, Maassen, Carney, and Borghesan, Justices.
A woman appeals the superior court's order granting her ex-husband primary custody of their children. She also argues that the court's property division, child support determination, and denial of her motion to modify custody are erroneous. Because the superior court did not abuse its discretion or clearly err, we affirm its custody and property division orders.
Francesca S. and Shawn K. married in February 2002 and have two minor children, Shannon and Nicole.[1] In April 2016 Francesca filed for divorce, requesting shared physical and joint legal custody of the children, an adjudication of "property rights and debts," and child support. Shawn filed an answer requesting "primary physical custody"of the children "with reasonable visitation to"Francesca. The superior court held a trial in April 2019.
Francesca asserted that she was the children's primary caregiver until she left the family home in Togiak to attend law school in 2016. But she also acknowledged that there had been times when the family had not lived together. One was when Shawn attended classes at the Alaska Vocational Technical Center (AVTEC) after Shannon was born in 2005 and she took care of Shannon. But she also testified that Shannon went to AVTEC to"live with [Shawn]." And she admitted that while she attended the University of Alaska Fairbanks, Shannon sometimes lived with her and sometimes with Shawn in Togiak.
Francesca also testified that she always encouraged the children to call Shawn and maintain a relationship with him. She claimed that Shawn did not reciprocate. She blamed his fiancée, Darian, for making him "hostile" to Francesca's attempts to set up regular phone contact with the children while she was in law school.
Francesca testified that she was currently looking for jobs in Anchorage and that Shannon had said she wanted to live with Francesca. Francesca also said she had found a high school for Shannon in Anchorage.
Francesca asserted that she would provide a more stable environment for the children in Anchorage than Shawn could in Togiak. She stated that she had concerns about Shannon walking around at night unsupervised and that Shannon had been "caught smoking marijuana." But she testified that if she could not find a job in Anchorage, she planned to return to Togiak to fish with her parents.
Francesca acknowledged that she did not like Darian, whos he claimed used "vulgar language" in texts to her and called the children "brats." And she testified that Shawn would not agree to talk to her about Darian. Finally, Francesca testified that Shawn was wrong when he claimed she had an alcohol problem.
Shawn testified that he had been the children's primary caretaker "since the beginning." He stated that he had cared for Shannon as a baby while he was at AVTEC and that Francesca had stayed in Togiak to work.
He disagreed that Francesca should have custody, explaining that he "know[s] what she's like behind closed doors." And he testified that neither he nor Darian had tried to prevent the children from having a relationship with, or contacting, Francesca.
Shawn testified that he was particularly concerned about Shannon, who was "afraid to get on the plane" for her most recent visit to Francesca. He testified that he "got the impression" that Francesca had been intoxicated during the previous visit, and that Shannon felt both that the divorce was "her fault" and that Francesca favored Shannon's sister. He asked the court to order "some kind of evaluation" if it was planning to award custody to Francesca. He also testified that he planned to remain in Togiak, where he "provide[s] for the children pretty well."
Francesca and Shawn disagreed about whether certain property was marital and how it should be allocated. Their disagreement centered on a commercial fishing permit that Shawn owned when they married, the home they lived in (the "green house"), and a piece of property where they had started building a bigger home ("Lot 5, Block 5").
Francesca argued that even though Shawn's grandfather had transferred the fishing permit to him before they married, it had become marital property because she "fished with him and . . . gave up [her] summers and didn't get paid"; the proceeds from fishing "all went into the joint account" to "pay for bills"; and they had listed the permit as collateral on a loan application to buy a new fishing vessel. She characterized her role as "pretty much a crew member," explaining that she "helped maintain and manage the fishing business."
Francesca testified that when they got married Shawn told her "his grandpa gave us th[e green] house." She stated that during their marriage they made additions that doubled the size of the "one room little cabin." Francesca estimated the green house's value at "about $50, 000," and argued that it should be awarded to Shawn.
Francesca also testified that Lot 5, Block 5 was a piece of property she paid for during the marriage to build a house on and that Shawn's name was not on the deed for the property. She stated that she had worked with Shawn to build a house on the property, and estimated that the value of the property was $70, 000 after the improvements they had made. Because she "eventually" wanted to move back to Togiak, she asked the court to award it to her.
In response to Francesca's claims, Shawn testified that his grandfather transferred the fishing permit to him before he and Francesca married. And he acknowledged paying Francesca "as a crew member."
Shawn asserted that the green house was not marital property. He testified that it "doesn't belong to me" and it "never belonged to me." He stated that his grandfather had "willed it to my mother." His mother later testified that Shawn's grandfather willed the house to her and her sister and that the will stated "any of his grandchildren [could use it] if they need to."
Shawn urged the court to award Lot 5, Block 5 to him instead of Francesca. He argued that it was marital property because it was "bought with marital money [and w]e just decided to put the land under her name at the time." Although he agreed with Francesca that it was worth $70, 000, he stated that he had "done almost all of the work to build [the] house," approximately "95 . . . 98 percent of the work." And he estimated that "we might have [$]25 or 30, 000 into it and my labor." He asked that the court order the property to "stay with me," especially since he was "building it" for "the children to have a bigger house."
Following their testimony the court ordered that a child custody investigator interview Shannon. The court refrained from issuing any additional orders until after Shannon had been interviewed.
The custody investigator interviewed Shannon in May 2019. She reported that Shannon told her Francesca drank "maybe every other day" during her last visit. She said Shannon stated that when her mother was drunk she told her she would never be successful and that Shannon overheard Francesca say she liked her sister Nicole better than Shannon. Shannon also told the investigator that Francesca said it "is a bad thing" that Shannon looks like her father. When asked about her father and Darian, Shannon told the investigator she had a close relationship with Darian because she "can tell Darian anything and Darian will help [me]." Shannon also "want[ed] the judge to know that she wants to live with [Shawn]."
The custody hearing resumed the following week. Francesca urged the court to disregard the custody investigator's report, arguing that Shannon had been coached. She denied the allegations about her drinking and accused Shawn and Darian of painting a negative picture of her to the children. Shawn denied coaching Shannon. Darian testified that she and Shannon were "extremely close" and that she tried "to nurture all of [her and Shawn's children] equally and in the best way [she could]."
The court issued its custody and property division order in June 2019. After considering each of the best interest factors in AS 25.24.150(c), [2] the court determined that it was in the children's best interest to award Shawn primary physical custody and Francesca visitation. Francesca received liberal visitation, with the children spending summers, spring breaks, and at least half of their Christmas vacations with her.
Turning to the property division, the court found that the green house was "not marital property because Shawn is not the owner of the home." The court acknowledged that Francesca contributed to the renovation of the house, valued the marital contributions to the home at $10, 000, and awarded Francesca $5, 000.
The court next found that Lot 5, Block 5 was marital property and awarded it to Shawn. The court based its decision on the evidence that Shawn had been working on the home to "accommodat[e] their growing family" and because he was "the parent with primary physical custody."[3] The court rejected the parties' $70 000 valuation, finding that "[t]he actual financial contributions the marriage made to the property is[sic] closer to $30,...
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