Helen S.K. v. Samuel M.K.
| Decision Date | 16 November 2012 |
| Docket Number | No. S–14422.,S–14422. |
| Citation | 288 P.3d 463 |
| Parties | HELEN S.K., Appellant, v. SAMUEL M.K., Appellee. |
| Court | Alaska Supreme Court |
OPINION TEXT STARTS HERE
Robin A. Taylor, Law Office of Robin A. Taylor, Anchorage, for Appellant.
Maurice N. Ellis, Law Office of Maurice N. Ellis, Anchorage, for Appellee.
Before: CARPENETI, Chief Justice, FABE, WINFREE, and STOWERS, Justices.
I. INTRODUCTION
Helen S.K. and Samuel M. K.1 were married in 1990. Helen filed for divorce in December 2010, requesting sole legal and primary physical custody of the parties' three minor children and equitable division of the marital assets. Samuel counterclaimed, requesting joint legal and shared physical custody of the children. Superior Court Judge Frank A. Pfiffner awarded joint legal custody of all three children, shared physical custody of the parties' two younger children, but awarded Samuel primary physical custody of the parties' oldest child. The court imputed income to Helen and required that she pay Samuel child support. Judge Pfiffner divided the parties' marital assets equally and made other decisions concerning the valuation and distribution of certain marital assets. Helen appealed this decision on several grounds, including the use of in camera interviews,2 the primary physical custody award to Samuel, the imputation of income, the equal property division, and the valuation and distribution of many of the assets. We reverse and remand with respect to the court's valuation of one asset, but affirm all of its other decisions.
II. FACTS AND PROCEEDINGSA. Facts
Helen S.K. and Samuel M.K. were married in 1990. Helen filed for divorce in December 2010, requesting sole legal and primary physical custody of the parties' three minor children and equitable division of the marital assets. Samuel counterclaimed, requesting joint legal and shared physical custody of the children. The three minor children were, at the time of trial: Jason, aged 16; Ellen, aged 14; and Jacob, aged 12.
Helen and her oldest son Jason had a contentious relationship. Helen described her son as an “instigator” with respect to the other two children, and believed that he had a “hard time getting along” with them. Samuel confirmed that Jason and Ellen often got “on each other's nerves,” fought daily, and sometimes needed to be separated. During their in camera interviews, each of the children noted some conflict between Helen and Jason.
This situation was made more complicated because Helen believed that Jason should continue medication for his diagnosed attention deficit disorder (ADD), while Samuel and Jason himself did not believe Jason should do so. At one point, Samuel took Jason to the doctor and had Jason removed from the medication without Helen's prior knowledge.
At the end of the hearing on interim custody, Samuel asked the court to interview the children prior to trial. Helen objected to judicial interviews with the children. Helen argued that the children had already been over-involved in decision-making and that placing this responsibility on them would be “unhealthy.” She instead requested the appointment of a custody investigator because she felt that asking the children to talk to a judge was “a heavy burden to put on a kid in a highly contentious situation.”
At the conclusion of the interim custody hearing, Judge Pfiffner explained:
These children are over the age of 12. I'm required statutorily under one of the factors under AS 25.24.150(c) to take into account the children's interests because of their age in what ultimately happens here.
Yes it is a stressful thing, but I somehow ... [have] to figure out what the kids want, [but] ... I'm not bound to follow what they want. I'm required to make a statutory determination of their best interests using ... all of the nine factors cited under the statute that I just mentioned....
I certainly want to take their interests into account. One of the ways I put it is that the children, they are still children and they don't drive the bus.... [O]n the other hand ... it's their lives that we're talking about here....
After Helen objected to the in camera interview and again requested a custody investigator, the court responded:
I am going to interview them. I'm not going to appoint the custody investigator....
I'll explain to you the way I do interviews. I do them in a non-threatening environment in my chambers on the record. The record is confidential. Actually, it's ... sealed, not confidential, which means that unless I order otherwise, it's recorded on the record, but not available to anybody.
I have an in-court deputy in there in my chambers with them. And frankly, it's worked. I used to not do very many of these at all, but over time, I've started doing more of them, because frankly, it's worked pretty well.
I don't want to put ... the children on the [witness] stand [to testify in court]. You know, that would be horrible here, and that's not going to happen. And because of the exigencies of time, I'm not going to utilize the custody investigator's office, which ... may or may not be able to do this the way that I'm doing it. So we'll ensure that happens....
And basically, I'll ... give you at the start of the trial some kind of perspective on where the children are coming from.
After the in camera interviews and before trial, Judge Pfiffner provided the parties with a summary of what he learned from the children:
[Ellen and Jacob] want to be together, and they like the new one week on/one week off schedule. If I were to do what they want—of course, I'm not obligated to do, and that remains for a decision—it would be one week on/one week off. They like the new regime, and they want it to continue indefinitely. That's my take.
[Jason] is a bit of a different situation. I think somebody described Jason as kind of a handful or—I'm not sure exactly what [Jason] wants. I was not able to really pin him down like you would put a pin on a dartboard....
But I will tell you this. It's clear to me from talking to [Jason], and really from talking to all three children, that [Jason] and Mom don't get along, and [Jason] really doesn't want to spend much time at all with Mom.
And what ... [Jason] told me really was consistent with what the other children perceived, as well. So ... it's not that [Jason] is out there on the edge of the cliff somewhere....
As to [Jason], he clearly wants primary physical custody with his father.
The squishy part, if you will, the part that I wasn't really able to pin him down on was how much time he wanted to spend with Mom. And he clearly wanted to spend time with Mom....
[H]e was really not definitive on exactly what he wanted there. But he certainly wanted one weekend a month, and maybe a little bit more, but not much.
And he wanted a couple of nights, like 5 to 8 [p.m.], a month with Mom. And that was kind of squishy, too, because he was very definitive that he was going to be involved in some sports, like soccer, and he didn't want the visitation with Mom to interfere with his extracurricular activities.
Later during trial, the court reiterated, “I understand what [Jason] wants [, but] ... [w]hat Dad has to show me is that ... [it's] in [Jason's] best interest, i.e., that he can meet [Jason's] needs given his vigorous work schedule.” Conversely, Helen would need to show that “more of a shared arrangement is better for [Jason], even though [Jason] clearly does not want that.”
The court began the interview with Jason by explaining:
This is a confidential, sealed interview that is available only to the [c]ourt, unless I order otherwise. So it is confidential.
So it's a chance for me to talk to you, [Jason], about your situation, your interests, your desires relative to the ongoing case. Because eventually ... I have to make a decision on final custody involving ... where you live, with Mom or Dad, or split in some way, that sort of thing, okay?
In his interview, Jason expressed a preference for living with his father and living with both of his siblings. Jason felt that his father was in a better position to help him with his homework and shared more of the same hobbies and interests. Jason still wanted to spend some time with his mother, agreeing to “an occasional weekend” and “maybe off and on during the week,” so long as his sports schedules were not impacted.
Regarding ADD medication, Jason explained that it is easier for him to do his homework now that he was not taking his medication, and that the medication made him feel “sick” and “lethargic.” Jason also said that he agreed with his doctor that he had “grown out” of his ADD and no longer needed the medication.
The court began the interview with Ellen by explaining:
This recording is confidential. That means that it's available to the [c]ourt and court staff, but not to your parents or their lawyers without any further order of the [c]ourt.
I requested that I talk to each child, since the children are 12 or older or thereabouts with the youngest. And that I wanted to get their input on what's going on in their lives and what they would like to have or prefer to have happen, in terms of custody. I want to have them have a voice, and I figured this was the best way to do it.
Ellen expressed a preference to continue the weekly alternating schedules. She also explained that her brother Jason is “really annoying, because he stopped taking his ADD medications,” but also “since [he has] ADD, he doesn't realize ... [his] jokes aren't exactly funny ... [h]e did have medication, but it didn't do anything.” Ellen expressed her belief that Jason and Helen “don't get along” and that Jason and Samuel get along “really well.”
The court began the interview with Jacob by explaining:
This is a confidential recording available only to the [c]ourt, unless I order otherwise, where I'm talking to each of the [K.]...
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