Lacy v. Lacy, 2770

• Decision Date: 20 August 1976
• Docket Number: No. 2770,2770
• Citation: 553 P.2d 928
• Parties: Ray S. LACY, Appellant, v. Helen L. LACY, Appellee.
• Court: Alaska Supreme Court

Page 928

553 P.2d 928

Ray S. LACY, Appellant, v. Helen L. LACY, Appellee.

No. 2770.

Supreme Court of Alaska.

Aug. 20, 1976.

Wayne Anthony Ross, Anchorage, for appellant.

Sandra K. Saville of Kay, Christie, Fuld & Saville, Anchorage, for appellee.

OPINION

Before BOOCHEVER, C. J., and RABINOWITZ, CONNOR, ERWIN and BURKE, JJ.

RABINOWITZ, Justice.

This appeal arises from the superior court's denial of appellant Ray Lacy's motion for modification of certain custody provisions which were made part of a decree of divorce.

Ray and Helen Lacy were married in 1949. In the course of their marriage two sons were born: Neal, who at the time of the superior court modification hearing was 15 years of age, and Gary, 13 years of age. In addition, the parties adopted a third son, Linn, who was 16 years of age at the time the hearing took place. In 1968 the parties obtained a decree of divorce from the superior court. This decree awarded Helen Lacy custody of the three boys during the 9-month school term, and Ray Lacy was awarded custody during the 3 summer months.

In 1972 the superior court modified the 1968 decree, awarding full custody of Linn to Ray, and full custody of the younger boys to Helen. ¹ With respect to Neal and Gary, the modification order provided that their father would enjoy 'reasonable visitation rights', specifically that they would visit Ray Lacy in Alaska for a period of 2 months during the summer. Consequently for a number of years Neal and Gary have summered in Alaska, but during the school year remained in Texas with their mother, where they attended school.

During the early part of August 1975, when Neal and Gray were scheduled to return to Texas, they ran away from their father's home in Alaska and remained in hiding until the flight to Texas, on which they held reservations, had departed Anchorge. Neal and Gary stated that they took this action in order to avoid having to return to Texas, since they desired to remain in Alaska with their father. Ray Lacy then sought legal advice, and subsequently moved to change custody of Neal and Gray from his former wife to himself. ²

Ray Lacy's motion to modify custody was heard by the superior court on October 31, 1975, and again November 21, 1975. On December 3, 1975, the superior court rendered a decision requiring Ray Lacy to return Neal And Gray to their mother in Texas, and an order to that effect was entered. ³ This appeal followed.

The standard of review of a superior court's ruling on a motion to modify a custody decree was articulated in Sheridan v. Sheridan, 466 P.2d 821, 824 (Alaska 1970), where we observed:

It is well established that on appeal our task is to ascertain whether or not the trial court misapplied the the broad discretion vested in it in regard to determination of custody questions, and whether the court's findings in respect to custodial issues are clearly erroneous. (footnote omitted)

Expounding on this theme, Justice Connor wrote for a unanimous court in Horton v. Horton, 519 P.2d 1131, 1132 (Alaska 1974), that:

Child custody determinations are among the most difficult in the law. Grave responsibility is placed upon the trial courts faced with making these determinations and, at the same time, broad discretion is granted them. However, while 'great weight must be accorded to the trial judge's experience and to his evaluation of demeanor testimony,' his discretion is not unlimited. On review we must determine whether that discretion has been abused, perhaps by assigning too great a weight to some factors while ignoring others, perhaps by elevating the interests of one of the parties to the dispute above that of the child, perhaps by making a clearly erroneous finding with respect to some material issue, or perhaps in some other manner. (footnote omitted)

In the instant appeal, we do not reach the ultimate issue as to whether the superior court committed an abuse of discretion in failing to award the custody of Neal and Gary to Ray Lacy. For reasons which will be subsequently explained, we believe the matter must be remanded to the superior court for the purpose of conducting further proceedings.

In this appeal Ray Lacy has advanced five specifications of error. We turn initially to those that can be treated rather summarily. Ray Lacy contends that the superior court abused its discretion in failing to appoint a guardian ad litem to represent the interests of Neal and Gary in the modification proceedings. Under AS 09.65.130(a) the superior court is vested with discretion to appoint a guardian ad litem. ⁴ Further, this court has suggested that in custody proceedings a guardian ad litem should be appointed when appointment would substantially enchance the likelihood that the '. . . individual needs and interests of the children would be adequately represented.' ⁵ The decision whether to appoint a guardian ad litem would appear to depend in large measure on the age of the children and the nature of the claim being advanced by the parent or parents. ⁶ Here the record shows that in response to an explicit inquiry by the superior court, counsel for both parties expressed the view that Ray Lacy and his trial counsel were fully capable of representing the interests of Neal and Gary. In light of the facts that neither party could suggest any specific benefit which a guardian might bring to the modification proceedings, and that appointment of a guardian ad litem would have necessitated a postponement of the hearing, we conclude that the superior court did not abuse its discretion in failing to appoint a guardian ad litem for the two minor children.

Ray Lacy next contends that the superior court erred in failing to recognize the desirability of keeping Linn, Gary and Neal together. We have previously held that in custody matters '. . . consideration should be given to the desirability of keeping the children of the family together so that the may enjoy the normal condition of childhood of growing up together as brothers and sisters.' ⁷

As was mentioned earlier, the original decree was modified in s972 so as to give custody of the eldest son, Linn, to Ray Lacy. During the most recent custody hearings in the superior court, counsel for Ray Lacy, in arguing for custody of Neal and Gary, stressed the fraternal harmony which had been achieved during recent summers when the younger boys joined Linn in Alaska, and the benefits to be secured by modifying custody in favor of family unity on a year-round basis. The record clearly shows that the superior court was well aware that denial of the motion for modification would perpetuate separation of the brothers. Yet, it refused to accord this factor conclusive weight. More particularly, the superior court indicated that it thought the 1972 custody modification was a mistake which it would not exacerbate by granting another modification order having the effect of further diminishing Helen Lacy's custody rights. Thus, we find without merit Ray Lacy's contentions that the superior court failed to recognized the importance of keeping the brothers together and committed an abuse of discretion in failing to give this factor conclusive weight in determining the custody issue.

Appellant Ray Lacy's third contention is that the trial court failed to consider relevant parts of the testimony of Dr. John Wreggit, a child psychiatrist called by appellant. ⁸ Careful review of the entire record indicates that the superior court did not 'totally disregard' the testimony of this witness. We therefore find no merit in this contention. ⁹

This brings us to appellant's two remaining specifications of error which raise closely related issues. Ray Lacy contends that the superior court erred in failing to consider the preferences of Gary and Neal with respect to their custody, and committed further error by virtue of its refusal to hear their testimony or, in the alternative, to conduct an in camera interview with them.

With respect to the preferences of minor children in custody disputes, the relevant statute, AS 09.55.205, provides in part:

In an action for divorce . . . the court may . . . at any time . . . during the minority of any child of the marriage, make an order for the custody of or visitation with the minor child which may seem necessary or proper and may at any time modify or vacate the order. . . . In awarding custody the court is to be guided by the following considerations:

(1) by what appears to be for the best interests of the child and if the child is of a sufficient age and intelligence to form a preference, the court may consider that preference in determining the question;

(2) as between parents adversely claiming the custody neither parent is entitled to it as of right. (emphasis added)

Appellant Ray Lacy contends that, while children's wishes are not necessarily controlling in a custody determination, '. . . they certainly are an important factor to be considered, provided the child is of sufficient mental capacity, age, maturity and intelligence.' Since Gary and Neal are of sufficient capacity and maturity, appellant urges that it was error for the superior court not to have considered their preferences to live with their father.

The record reveals that the superior court was fully aware of Gary and Neal's preferences to continue living with their father. ¹⁰ At one point in the proceeding, the court informed counsel that:

I'm convinced that these boys want to live with their father now, but my question is, is that sufficient to change custody?

I'm going to assume that these boys have a sincere desire to live with their father up here. . . .

Thus, appellant's contention that the superior court failed to consider the children's preference is groundless. Nevertheless, this conclusion is dispositive neither of the custody issues in the case at bar, nor of the significance of the preferences of Neal and Gary as to which parent they desired to live with.

As was indicated earlier,...