MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
1. When Thomas Lamb and Patricia Pierce (then Lamb) divorced in 1996, Superior Court Judge Rene Gonzales granted Pierce sole legal and shared physical custody of the couple's daughter. In Lamb v. Lamb ( Lamb I), we affirmed the custody award but remanded with directions to provide for vacation visitation.
Lamb v. Lamb, Mem. Op. J. No. 847 at 9 (Alaska, March 12, 1997).
2. Lamb then moved to modify the custody award, alleging changed circumstances because Pierce planned to move to Ohio; he separately moved for relief from the original judgment, asserting that Pierce had perpetrated a "fraud on the court." After the superior court denied both motions, Lamb again appealed. He argued in part that the original custody award violated his constitutional rights as a parent; he also challenged as unconstitutionally vague and overbroad two statutory provisions, AS 25.20.090 and AS 25.24.150, that require courts to award custody based on the children's best interests and set out "best interests" factors for courts to consider in making a custody determination. In Lamb II, we rejected these constitutional arguments because Lamb had failed to raise them in the superior court and had asserted them for the first time on appeal.
Lamb v. Lamb, Mem. Op. J. No. 897 at 2 (Alaska, October 28, 1998) ( Lamb II).
Id.
Id. at 5-6.
Id.
3. While the appeal in Lamb II was pending, Lamb sued the State of Alaska for a declaratory judgment, challenging AS 25.20.090 and AS 25.24.150 as unconstitutional on the grounds that their best-interests requirements were unduly vague and violated constitutional guarantees of equal protection, privacy, and separation of powers. In June 2001 we issued Lamb III, in which we affirmed a superior court order dismissing Lamb's action against the state; we held in relevant part that Lamb's constitutional claims were barred by res judicata because "Lamb could have raised the constitutional validity of the custody laws in his divorce action."
Lamb v. State, Mem. Op. J. No. 1030, WL 34818205 at *2 (Alaska, June 13, 2001) ( Lamb III).
Id. at *3-4.
4. In March 2003, soon after the Alaska Child Support Enforcement Division moved to modify Lamb's child support obligation, Lamb filed a new motion in the divorce case, again seeking an order declaring AS 25.20.090 and AS 25.24.150 to be unconstitutional. After withdrawing his motion for reasons not relevant here, Lamb moved to reinstate it in August 2004. In support of his motion to reinstate his constitutional challenge, Lamb alleged changed circumstances, complaining that Pierce was preventing him from communicating with his daughter and had failed to provide the daughter's allergist with Lamb's medical history. Superior Court Judge John Suddock declined to reinstate the motion for declaratory judgment, ruling that it was barred by issue preclusion, or collateral estoppel.
5. Lamb moved for reconsideration, questioning the court's reliance on issue preclusion and asserting that he was entitled to raise the constitutional issue for purposes of requesting that the original order be modified in light of changed circumstances. Judge Suddock granted Lamb's motion for reconsideration, clarified that the original order should have relied on claim preclusion instead of issue preclusion, but also acknowledged that Lamb's claims "may in fact not be barred" given the ongoing nature of child custody cases and Lamb's "ability to plead changed circumstances." The court thus addressed the merits of the two constitutional violations that Lamb's pleadings appeared to raise at the time: denial of equal protection and privacy. In a brief written decision, the court ruled that Lamb had failed to establish that Alaska's best-interests factors would either deprive him of equal protection or violate his constitutional right to privacy.
6. Lamb again moved for reconsideration, contending that, upon granting his motion for reconsideration and deciding to rule on his constitutional claims, the superior court should have allowed both parties an opportunity to submit supplemental pleadings more fully addressing the merits of the constitutional claims. In response to Lamb's motion, Judge Suddock issued an order inviting both parties to submit additional briefing if they wished to. Pierce, who had not responded to any of Lamb's previous pleadings, did not accept the court's invitation. But Lamb filed an amended motion for declaratory judgment, which more extensively discussed original claims and raised additional theories to support his constitutional challenge. After receiving Lamb's amended motion, the superior court issued an order summarily rejecting all of Lamb's claims: "Defendant's motion to declare AS 25.20.090 and AS 25.24.150 unconstitutional is denied."
7. After unsuccessfully seeking reconsideration again, Lamb filed this appeal. Lamb raises two points, arguing first that the superior court erred in failing to make specific findings in support of its ruling and, second, that the court erred in declining to declare that AS 25.24.150 and AS 25.20.090 are unconstitutional. We consider each point in turn.
8. Before addressing his constitutional claims, Lamb briefly argues that the superior court abused its discretion by failing to support its decision with adequate findings and conclusions. Relying on Alaska Civil Rule 52(a) and cases interpreting that rule, Lamb insists that the superior court was required to make specific findings concerning the facts it relied on and to state separately the legal conclusions it drew from those facts. By its own terms, though, Rule 52(a) applies only to "actions tried upon the facts" and has no application to decisions of any motion "except as provided in [Civil] Rule 41(b)" — a provision that applies only when a judge conducting a non-jury trial rules on a motion for a directed verdict. Here, the superior court did not reach its decision after conducting a trial on the merits; instead, it simply ruled on Lamb's motion to declare Alaska's statutory best-interests factors unconstitutional — a motion that required no trial on the facts, because it raised pure questions of law to be decided on the facts as Lamb alleged them to be. Neither Rule 52(a) nor our case law required the superior court to issue findings and conclusions in deciding this motion.
Alaska Rule of Civil Procedure 52(a) provides in relevant part:
(a) Effect. In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon and judgment shall be entered pursuant to Rule 58; and in granting or refusing interlocutory injunctions the court shall similarly set forth the findings of fact and conclusions of law which constitute the grounds of its action. . . . Findings of fact and conclusions of law are unnecessary on decisions of motions under Rules 12 or 56 or any other motion except as provided in Rule 41(b).
Specifically, Lamb relies on discussion from the dissenting opinions in Virgin v. Virgin, 990 P.2d 1040 (Alaska 1999), and Borchgrevink v. Borchgrevink, 941 P.2d 132 (Alaska 1997).
The relevant passage of Alaska Civil Rule 41(b) provides: After the plaintiff, in an action tried by the court without a jury, has completed the presentation of the plaintiff's evidence, the defendant, without waiving the right to offer evidence in the event that a motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then weigh the evidence, evaluate the credibility of witnesses and render judgment against the plaintiff even if the plaintiff has made out a prima facie case. Alternately, the court may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52(a).
9. Lamb devotes most of his brief to challenging Alaska's best-interests statutes, AS 25.20.090 and AS 25.24.150. These provisions require courts to award custody based on the best interests of the child and list similar factors for courts to consider in determining the child's best interests. Of the two statutes, AS 25.24.150 is the most pertinent here, because it specifically governs custody judgments in divorce cases. Subsection .150(c) directs the court in such cases to consider:
(1) the physical, emotional, mental, religious, and social needs of the child;
(2) the capability and desire of each parent to meet these needs;
(3) the child's preference if the child is of sufficient age and capacity to form a preference;
(4) the love and affection existing between the child and each parent;
(5) the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;
(6) the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child, except that the court may not consider this willingness and ability if one parent shows that the other parent has sexually assaulted or engaged in domestic violence against the parent or a child, and that a continuing relationship with the other parent will endanger the health or safety of either the parent or the child;
(7) any evidence of domestic violence, child abuse, or child neglect in the proposed custodial household or a history of violence between the parents; (8) evidence that substance abuse by either parent or other members of the household directly affects the emotional or physical well-being of the child;
(9) other factors that the court considers pertinent.
10. Lamb challenges these factors as unconstitutional on many theories.
He questions whether factors allowing a court to deny custody based on a parent's "poor cooperation," "poor communication," or ability to foster an "open and loving relationship" are unconstitutionally vague; in advancing this argument, Lamb maintains that the best-interests factors have been applied arbitrarily. Lamb also questions whether such factors violate freedom of speech by potentially penalizing a parent who expresses disapproval of a co-parent's activities. And he suggests that AS 25.24.150(c)(9) impermissibly delegates legislative authority to the judiciary by broadly allowing courts to consider any "other factors that the court considers pertinent." Lamb further maintains that the best-interests factors violated his constitutionally protected privacy and parental rights by authorizing the court to deprive him of custody without proof that his daughter might be at risk of harm. Given the importance of these rights, Lamb contends, the best-interests factors must receive strict scrutiny and should be sustained only if they further a compelling state interest.
Referring to our decision in Lamb III, in which we noted that the state lacked any interest in intervening in private custody disputes, Lamb v. State, Mem. Op. J. No. 1030, WL 34818205 at *3 (Alaska, June 13, 2001), Lamb suggests that the best-interests statutes do not further any state interest. But this argument mistakenly overlooks the distinction between the state's understandable lack of interest in seeking to intervene as a party in private custody disputes and its unmistakable interest in adopting a statutory regime that allows courts to resolve such disputes.
11. These arguments are unpersuasive for several reasons. As the United States Supreme Court made clear in Troxel v. Granville, the constitutionality of a best-interests statute like Alaska's ordinarily cannot be determined on a facial basis, that is, by determining whether the statute is invalid in all applications, but must instead be considered only as the statute applies in a particular case. Here, in advancing his constitutional challenges, Lamb focuses his briefing almost exclusively on alleged errors committed by the superior court when it awarded custody to Pierce. The main thrust of his argument, then, is that the best-interests factors were unconstitutional as they were applied in the original custody ruling. Yet as we have already pointed out above, our decision in Lamb III held that any claims of constitutional error arising from the original custody determination are now barred by res judicata. Lamb III thus precludes Lamb's current claims regarding the original proceedings. Lamb may not use his right to seek a modified custody award based on changed circumstances as a basis for reviving his barred claims that the best-interests factors were unconstitutionally applied in the original custody ruling.
Troxel v. Granville, 530 U.S. 57, 73 (2000) (invalidating the "best-interests" provision in a Washington nonparental visitation statute as applied in the case at hand but refusing to consider the statute's facial validity, holding, "In this respect, we agree with Justice Kennedy that the constitutionality of any standard for awarding visitation turns on the specific manner in which that standard is applied and that the constitutional protections in this area are best `elaborated with care.'" (quoting Id. at 101 (Kennedy, J., dissenting))).
Lamb v. State, Mem. Op. J. No. 1030, WL 34818205 at *3 (Alaska, June 13, 2001).
12. Arguably, Lamb's arguments concerning the alleged unconstitutionality of the original custody ruling might be interpreted as asserting that the same error would likely recur in any new custody decision addressing changed circumstances. But even assuming that Lamb meant to advance this contention, his theory would prove unpersuasive. Accepting for the sake of discussion Lamb's allegations of changed circumstances, we see no sound basis in the law or the record to conclude that the best-interests factors, as applied in light of these changes, would produce an unconstitutional custody ruling. Because the superior court appears to have reached the same conclusion in its order denying Lamb's motion to invalidate AS 25.20.090 and AS 25.24.150, we find no reason to disturb that court's decision.
13. For these reasons, we AFFIRM the superior court's order dismissing Lamb's motion for a declaratory judgment.