Judd v. Burns

Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
TRAVIS M. JUDD, )
) Supreme Court No. S-16213
Appellant, )
) Superior Court No. 4FA-13-01989 CI
v. )
) OPINION
AMANDA BURNS f/k/a JUDD, )
) No. 7184 – July 7, 2017
Appellee. )
)
Appeal from the Superior Court of the State of Alaska,
Fourth Judicial District, Fairbanks, Michael P. McConahy,
Judge.
Appearances: Mila A. Neubert, Neubert Law Office, LLC,
Fairbanks, for Appellant. Margaret O’Toole Rogers, Foster
& Rogers, LLC, Fairbanks, for Appellee.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger,
and Carney, Justices.
MAASSEN, Justice.
I. INTRODUCTION
Divorced parents shared custody of their son equally pursuant to a
parenting agreement. The mother asked the superior court to modify the agreement to
allow her to move with the child to Hawaii. Following a two-hour hearing the court
modified custody, granting primary physical custody to the mother; it also modified legal
custody to allow the mother final decision-making authority, subject to later court
ratification, though neither party had asked that legal custody be modified. The father
appeals.
We conclude that the superior court did not clearly err or abuse its
discretion when it granted modification and awarded primary physical custody to the
mother, and we affirm that part of the court’s decision. But we hold that it was an abuse
of discretion to modify legal custody when neither party had requested it, the parties
were not on notice that it was at issue, and the evidence did not demonstrate a need for
it. We therefore vacate the modification of legal custody.
II. FACTS AND PROCEEDINGS
A. The Parenting Agreement
Travis Judd and Amanda Burns were married in 2008 and have a son, H.,
who was born in 2011. Amanda also has another son, K., from a prior marriage.1 The
couple separated in May 2013. Amanda received a default divorce, but when Travis
appeared with new counsel the court set the default aside in August 2014 and scheduled
a custody trial for the following year.
In the meantime the court left in place the custody order entered after
default, granting Amanda sole legal and primary physical custody, with reasonable
visitation for Travis. The court also referred the case to a child custody investigator for
early evaluation, possible settlement discussions, and an investigation if the parties could
not settle.
In October 2014 Travis moved for temporary orders granting joint legal and
shared physical custody. In February 2015, as the scheduled hearing on the motion was
about to begin, the parties stipulated to temporary orders by which they shared legal
1
We identify the children by their initials in order to better protect their
privacy.
-2- 7184
custody, Amanda had primary physical custody, and Travis had regular daytime
visitation. They agreed that Travis’s visitation would increase to include overnights once
he obtained a substance abuse assessment and complied with any resulting
recommendations.
Through mediation, the parents were then able to reach a permanent
parenting agreement before trial. They agreed to joint legal custody and that they would
gradually transition to shared physical custody as Travis satisfied certain conditions,
including moving from his dry cabin to more conventional housing, undergoing an anger
management assessment, and completing any recommended treatment. Travis and
Amanda would ultimately share physical custody 50-50 once the conditions were
satisfied.
By August 2015 Travis had obtained conventional housing, had completed
the assessment, and had attended recommended classes. The parties began sharing
custody equally a month later.
B. Amanda’s Motion To Modify Custody
In September 2015 — shortly after the parties began sharing custody
equally — Amanda filed a motion to modify the custody agreement to award her primary
physical custody. She explained that she planned to move to Hawaii before the start of
the 2016 school year with her new husband and K., her older son, and she wanted H. to
move with them.2 She asserted that the move would provide “opportunities for a larger
income, increased family stability, and a better environment” as well as “open doors for”
the two boys. She wanted H. to live with her in Hawaii during the school year and have
“liberal summer and holiday visitation” with Travis in Fairbanks.
2
The parties agree that Amanda’s possible move to Hawaii was at least
mentioned during the mediation that resulted in the parenting agreement, though the
consequences of the move were not formally addressed or resolved at that time.
-3- 7184
Travis opposed the modification, arguing that the move was intended to
avoid sharing custody and was not in H.’s best interests. He pointed to Amanda’s history
with K. and contended that he and Amanda “actually got married when they did . . .
because Amanda believed that being married and planning to move out of state (at that
time, Texas) would make it easier for her to obtain primary physical custody of [K.].”
According to Travis, Amanda’s history with K.’s father demonstrated the unlikelihood
that she would help maintain a strong long-distance relationship between Travis and H.
Travis also requested appointment of another custody investigator, a request the court
denied.
The court found that Amanda’s allegations justified an evidentiary hearing
and scheduled a two-hour hearing to decide two relevant issues: whether Amanda’s
proposed move was legitimate and whether moving to Hawaii with Amanda was in H.’s
best interests.3 Following the hearing, the court agreed with Amanda’s position on both
issues. It granted the requested modification, awarding Amanda primary physical
custody and Travis summer and holiday visitation. The court also modified legal
custody, granting Amanda final say on legal custody issues but requiring her to seek the
court’s approval within ten days of a disputed decision.
Travis appeals, raising these issues: (1) whether the superior court clearly
erred in finding that Amanda’s planned move was legitimate; (2) whether the court
abused its discretion when it failed to order a custody investigation; (3) whether the court
abused its discretion by limiting the evidentiary hearing to two hours; (4) whether the
court abused its discretion when it decided that it was in H.’s best interests to move to
Hawaii with Amanda; and (5) whether the court abused its discretion by modifying legal
custody.
3
See Rego v. Rego, 259 P.3d 447, 453 (Alaska 2011).
-4- 7184
III. STANDARDS OF REVIEW
“Superior courts have broad discretion in child custody decisions, and we
will reverse only if findings of fact are clearly erroneous or if the superior court abused
its discretion.”4 “A factual finding is clearly erroneous when a review of the record
leaves the court with a definite and firm conviction that the superior court has made a
mistake.”5 “An abuse of discretion exists where the superior court ‘considered improper
factors in making its custody determination, failed to consider statutorily mandated
factors, or assigned disproportionate weight to particular factors while ignoring
others.’ ”6 “Additionally, an abuse of discretion exists if the superior court’s decision
denied a substantial right to or substantially prejudiced a party.”7 We apply “the abuse
of discretion standard to review a trial court’s decisions relating to appointment of a child
custody investigator.”8
IV. DISCUSSION
“Alaska Statute 25.20.110 authorizes courts to modify child-custody and
visitation awards if (1) there has been a change in circumstances that justifies
modification and (2) the modification is in the best interests of the child.”9 “We have
4
Riggs v. Coonradt, 335 P.3d 1103, 1106 (Alaska 2014) (citing Ronny M.
v. Nanette H., 303 P.3d 392, 399 (Alaska 2013)).
5
Id. (quoting Ronny M., 303 P.3d at 399).
6
Id. (quoting Ronny M., 303 P.3d at 399).
7
Ronny M., 303 P.3d at 400 (citing House v. House, 779 P.2d 1204, 1206
(Alaska 1989)).
8
Littleton v. Banks, 192 P.3d 154, 157 (Alaska 2008) (quoting Ogden v.
Ogden, 39 P.3d 513, 516 n.2 (Alaska 2001)).
9
Rego v. Rego, 259 P.3d 447, 452 (Alaska 2011) (citing Melendrez v.
(continued...)
-5- 7184
held that a custodial parent’s decision to move out-of-state . . . amounts to a [substantial]
change in circumstances as a matter of law” for purposes of physical custody
modifications.10 Accordingly, both parties in this case agree that Amanda’s proposed
move constitutes a change in circumstances that may justify a modification of physical
custody.
When deciding whether to modify custody because of a parent’s planned
move, the superior court must determine “whether there are legitimate reasons for the
move.”11 If the move is legitimate, “there is no presumption favoring either parent when
the court considers the child’s best interests.”12 “The relocating parent secures primary
custody by showing that living with that parent in a new environment better serves the
child’s interests than living with the other parent in the current location.”13 “The ultimate
focus of the custody modification statute is the best interests of the children.”14
9
(...continued)
Melendrez, 143 P.3d 957, 962 (Alaska 2006)).
10
Id. (alterations in original) (quoting Barrett v. Alguire, 35 P.3d 1, 6 (Alaska
2001)).
11
Id. at 453 (citing Barrett, 35 P.3d at 6).
12
Id. (citing McQuade v. McQuade, 901 P.2d 421, 424 (Alaska 1995)).
13
Id.
14
Lashbrook v. Lashbrook, 957 P.2d 326, 328-29 (Alaska 1998).
-6- 7184
A. The Superior Court Did Not Clearly Err When It Found That
Amanda’s Move Was Legitimate.
“A move is legitimate if it is not primarily motivated by a desire to make
visitation more difficult.”15 Here, the superior court recognized “[t]he reality [that] any
move by a parent from a common community” will make the other parent’s visits more
difficult, but it found persuasive the testimony of Amanda and her husband that making
visitation more difficult for Travis was not their intent. The court found it “more
probable than not that the move is based on considerations of financial security and
opportunities for growth.”
Travis argues that this finding was erroneous because “Amanda’s stated
reasons for the move changed over time,” which should have prompted more judicial
skepticism. He argues that Amanda first cited “economic reasons” for the move before
testifying that the main reason was the boys’ education. But Amanda’s explanations
were not so inconsistent that the superior court could not find them credible. In her
request to modify custody she cited Hawaii’s “opportunities for a larger income,
increased family stability, and a better environment.” She reiterated these themes at the
hearing, and her new husband testified about his own job opportunities in Hawaii. The
evidence sufficiently supports the court’s finding that the move was primarily motivated
by financial security and opportunities for job growth.
Travis counters that both Amanda and her husband had decent employment
in Fairbanks and were unlikely to make more money in Hawaii, and he challenges as
“offensive and disingenuous” Amanda’s argument that she needs increased job security.
But Amanda testified that she makes less money every year in her Fairbanks job, that she
is afraid for the continued security of her employment there, and that Hawaii holds more
15
Rego, 259 P.3d at 453 (citing Moeller-Prokosch v. Prokosch, 27 P.3d 314,
316 (Alaska 2001)).
-7- 7184
opportunities for her. Her husband testified about his dim view of Alaska’s economy
and that the economy in “Hawaii, especially Kona, the Big Island, is absolutely on fire.”
Regardless of these witnesses’ abilities as economic forecasters, their testimony supports
the superior court’s findings about their subjective rationales.16
Travis argues that the superior court failed to give adequate weight to the
“purely voluntary” nature of the move — which he characterizes as a “move to a warmer
climate, by choice.” He contends that “simply moving . . . [to] be more happy and enjoy
better weather year-round does not make the move a legitimate one.” While vague and
aesthetic motives may be less convincing than more easily explained ones, moving to be
“more happy” or to “enjoy better weather year-round” may be sufficient; indeed, the
superior court does not need to be able to identify the primary motivation at all as long
as it can exclude “a desire to make visitation more difficult,” as the court did here.17
Finally, Travis asserts that Amanda “has a pattern of moving to avoid
sharing physical custody of her children” which the superior court “disregarded
entirely.” But the superior court considered and rejected Travis’s argument. The court
acknowledged the relevance of Amanda’s earlier move to Alaska with K., her older son,
and its impact on K’s relationship with his father in Texas. But the court “d[id] not
16
The question for the court is what motivated the move, not whether the
motivation was a wise one. See Beals v. Beals, No. S-15632, 2015 WL 1394674, at *3
(Alaska Mar. 25, 2015) (affirming finding of legitimacy where the superior court found
that “[a]lthough [the mother’s] decision to leave her long-standing job in Seward was
short-sighted, it was not motivated to interfere with [the father’s] relationship with the
children”).
17
Rego, 259 P.3d at 453 (citing Moeller-Prokosch v. Prokosch, 27 P.3d 314,
316 (Alaska 2001)); see also Silvan v. Alcina, 105 P.3d 117, 121 (Alaska 2005)
(explaining that “[t]he superior court correctly applied our holdings” when it found “a
legitimate reason to move” based on the parent’s “desire to get away from the State of
Alaska.”).
-8- 7184
agree” with Travis that K.’s move from Texas to Alaska “presages a similar fate for [H.]
if [Amanda] goes to Hawaii.” Travis’s allegations notwithstanding, the superior court
expressly found that the evidence did not show that K. and his father lacked an “open,
loving” relationship after Amanda and K. moved to Alaska. And there is support in the
record for the court’s refusal to find that this history intimated trouble for Travis.
Though Travis testified that Amanda told him she wanted to marry him and move to
Alaska in part to make it easier to get custody of K., Amanda denied it, and the superior
court could credit her denial. The court had earlier noted Amanda’s efforts to “make
sure that [H.] has access to his father” in the months following the default, even though
the orders then in place did not require it. While we agree that the court could have made
different inferences from Amanda’s history with K. and K.’s father, its finding of
motivation depends almost entirely on its credibility assessments, “and we therefore give
it particular deference.”18 We conclude that the superior court did not clearly err when
it found that Amanda’s planned move to Hawaii was legitimate.19
B. The Superior Court Did Not Abuse Its Discretion When It Declined To
Order A Custody Investigation.
The superior court had referred the case to a custody investigator in its first
scheduling order after setting aside the default, but the parties then reached their
18
Kristina B. v. Edward B., 329 P.3d 202, 214 (Alaska 2014) (citing Limeres
v. Limeres, 320 P.3d 291, 296 (Alaska 2014)).
19
Travis also argues that Amanda’s move was illegitimate because “Amanda
and her husband had never lived in Hawaii previously.” While existing connections will
likely strengthen a parent’s case that the move is legitimate, they are not required; for
example, a parent may move to a new place because of its educational or employment
opportunities. See House v. House, 779 P.2d 1204, 1208 (Alaska 1989) (upholding
legitimacy for a “move to Berkeley so that his wife could pursue her Ph.D.”), superseded
by statute on other grounds as recognized in Collier v. Harris, 377 P.3d 15, 25 (Alaska
2016).
-9- 7184
parenting agreement at mediation, ostensibly resolving all issues of custody without the
investigator’s input. There is no indication in the record that the initial referral resulted
in any written evaluation or investigation. Travis requested a custody investigation again
in response to Amanda’s request for modification; he argues that the superior court
abused its discretion when it declined to appoint an investigator at that stage of the
proceedings.20 We disagree.
Alaska Civil Rule 90.6 provides that the court “may appoint an expert” to
investigate custody issues and “provide an independent opinion concerning the child’s
best interests.” Because the purpose of the investigation is to assist the court, the court
has “wide discretion” to decide whether an appointment should be made.21 “Unless it
can be shown that a court would be unable to determine the child’s best interest without
a custody investigation, a trial court does not abuse its discretion when it decides not to
appoint an investigator.”22
20
Travis made his request for a custody investigation in his opposition to
Amanda’s motion to modify custody. Amanda argues that he then waived the argument
when he failed to raise it again before the modification hearing, after the court informed
the parties that no custody investigator would be appointed. But Travis did not have to
repeat his request after its denial in order to preserve the issue for appeal. See Pierce v.
Catalina Yachts, Inc., 2 P.3d 618, 620 n.2 (Alaska 2000) (noting that “a party has no
duty to take exception when the trial court rules on a disputed issue” in order to
adequately preserve the right to argue the point on appeal).
21
D.D. v. L.A.H., 27 P.3d 757, 761 (Alaska 2001) (citing Pearson v. Pearson,
5 P.3d 239, 242 (Alaska 2000)); see also Yelena R. v. George R., 326 P.3d 989, 1001
(Alaska 2014) (concluding that the superior court did not abuse its discretion when it
decided not to appoint a custody investigator in response to a parent’s oral request
because the “custody office was busy and it was likely no one would be able to meet with
them until the fall”).
22
D.D., 27 P.3d at 761.
-10- 7184
Travis asserts that the superior court was aware of possible substance abuse
and domestic violence issues of the kind that often “lead trial courts to appoint a custody
investigator.” He also argues that the court had only “between four [and] five hours of
experience with the parties total over a span of two and a half years” and had “never held
a best interests hearing regarding [H.]” before the modification hearing. But Travis does
not persuade us that issues of substance abuse and domestic violence made an
investigation necessary rather than merely helpful. The superior court believed it was
familiar enough with Amanda, Travis, and H. that an independent investigation would
not significantly aid its consideration of the issues on modification, a conclusion it was
in the best position to reach.23 And as explained in the section that follows, we agree that
the court was able to reach a reasoned decision on H.’s best interests. We conclude that
the superior court’s refusal to order a custody investigation was not an abuse of
discretion.
C. The Superior Court Did Not Abuse Its Discretion When It Granted
Amanda Primary Physical Custody.
Travis argues that the superior court abused its discretion when it modified
physical custody because (1) the evidentiary hearing was too short and (2) the court
failed to appropriately weigh the best interests factors. We conclude that there was no
abuse of discretion.
1. Length of hearing
Travis contends that the “distressingly short” evidentiary hearing on
modification was insufficient to allow the court to make an informed best interests
23
For this reason we are also unpersuaded by Travis’s argument that the
parties’ mutual assent to an investigation required the court to order one.
-11- 7184
determination. He does not frame his argument in due process terms,24 so we consider
only whether the superior court abused its discretion when it limited the hearing to two
hours.
Travis first argues that the superior court was able to gather so little
information that any decision it made must have been arbitrary; he argues that a two-hour
hearing was “so little, and so less than typically provided for matters of this weight, that
it leads one to conclude that the trial court had already made up its mind to rule in
Amanda’s favor prior to the hearing.” He contends that the hearing’s brevity “did not
permit [him] to have any experts testify on his behalf.” Amanda admits that “no formal
best interest hearings had been held” previously in the case, but she asserts that the
superior court “had over two years of pleadings, testimony regarding the parties’
concerns, and the Superior Court’s own impressions over that time.”
We conclude that the record supports the superior court’s determination that
it had the evidence it needed to make a reasoned best interests decision. We note first
that the court’s on-record comments earlier in the case demonstrate its familiarity with
the issues in at least a general sense. The parties then submitted extensive competing
affidavits that the court had to review in deciding whether to grant a hearing on
Amanda’s motion to modify custody. With this background, the court began the
December 2015 hearing by informing the parties that “if I find that it is a legitimate
24
We have explained that “[i]t is essential to contested custody proceedings
that the parties be afforded a hearing which grants them the opportunity to present the
quantum of evidence needed to make an informed and principled determination.”
Lashbrook v. Lashbrook, 957 P.2d 326, 328 (Alaska 1998) (citations omitted).
Relatedly, a court abuses its discretion where “the superior court’s decision denied a
substantial right to or substantially prejudiced a party.” Ronny M. v. Nanette H.,
303 P.3d 392, 400 (Alaska 2013) (citing House, 779 P.2d at 1206). Travis mentions due
process only in his reply brief, and then only cursorily without any legal discussion.
-12- 7184
move, we’ll take some testimony regarding best interests. I don’t expect to make those
decisions live here, so I’ll hear all of that evidence right now and sort through it.” When
later in the proceeding Amanda’s counsel asked whether it was time for her to turn her
attention from the legitimacy of the move to the best interests factors, the court
responded, “Please, go ahead.” Amanda and her husband testified at the hearing about
the benefits of their move, its impact on visitation with Travis, H.’s relationship with his
half-brother K., H.’s educational needs, and other aspects of H.’s life. Travis’s
girlfriend testified about Travis’s parenting and his ability to foster a relationship
between H. and Amanda. Travis testified about how he spent his time with H., about his
family members in Alaska, and about his plans to build a new house next door to his
parents. He testified about his sobriety and introduced into evidence his substance abuse
and anger management assessments. The court’s subsequent written order demonstrates
its understanding of the case and a careful consideration of the best interests factors,
supported by a discussion of the evidence. And notwithstanding Travis’s complaint that
he lacked time to call experts, the record does not show that he attempted to call experts
at the hearing or made any specific requests for more time.25
25
Travis’s attorney did make an offer of proof regarding evidence of Travis’s
time with H. in early childhood. But she did not mention the need for expert testimony.
The attorney kept “close track of [her] time” and noted that “with the time I have, I think
that’s all I can do”; at no time before or during the trial did she ask for more time or
identify the evidence Travis was restrained from presenting because of the time limits.
“A party’s failure to make an offer of proof acts as a waiver of any claim of error
regarding the exclusion of unspecified evidence.” AT&T Alascom v. Orchitt, 161 P.3d
1232, 1245 (Alaska 2007). Offers of proof are especially important for appellants
claiming that time limits or other hearing restrictions impeded their presentations. See
Schmidt v. Beeson Plumbing & Heating, Inc., 869 P.2d 1170, 1180 n.15 (Alaska 1994)
(explaining that appellant’s failure to make an offer of proof was “fatal to [his] claim”
that the workers’ compensation board imposed unreasonable time limits on his
(continued...)
-13- 7184
“Subject to the constitutional rights of the litigants, the trial court plainly
retains discretionary control of its own calendar, and an appellate court will rightly
hesitate to disturb the trial court’s rulings on such matters, unless it is clearly shown that
this discretion was manifestly abused.”26 No abuse of discretion is evident here. Though
the modification hearing was relatively brief, we will not second-guess the superior
court’s determination that it was sufficient under the circumstances.
25
(...continued)
presentation of evidence); Adamson v. Univ. of Alaska, 819 P.2d 886, 889-90 (Alaska
1991) (explaining that “if appellate review is to be meaningful, a party asserting error in
[agency] proceedings must, by making an offer of proof or other appropriate procedural
means, afford the appellate tribunal a means of evaluating the claims of error”).
26
75 AM. JUR. 2D Trial § 21 (2017).
-14- 7184
2. Weighing best interests factors
We next turn to whether the superior court’s best interests determination
was an abuse of discretion. “The superior court’s custody modification decision must
be guided by the best interest factors listed in AS 25.24.150(c),”27 which include the
capability of the parents to meet the child’s needs; “the love and affection existing
between the child and each parent”; stability; each parent’s ability to foster a relationship
between the child and the other parent (the “fostering factor”); domestic violence; and
substance abuse. While the “court cannot assign disproportionate weight to particular
factors while ignoring others, it has considerable discretion in determining the
importance of each statutory factor in the context of a specific case and is not required
to weigh the factors equally.”28
The superior court in this case found that Amanda “has demonstrated a
superior capability to meet [H.’s] needs”; the capability factor therefore favored Amanda.
The court found that Amanda “has provided consistent care for [H.] during his life” and
“a stable, satisfactory environment for H. since birth” and that “it is desirable to maintain
that stable continuity”; the stability factor therefore favored Amanda as well. The court
found that the fostering factor favored Amanda because she “does promote a relationship
between [H.] and [Travis],” whereas “there is little or no historical record to establish
that [Travis] could or would promote” the relationship between H. and Amanda. The
court also considered “evidence of domestic violence, anger, and substance abuse”;
27
Andrea C. v. Marcus K., 355 P.3d 521, 528 (Alaska 2015) (citing
AS 25.24.150(a), (c)); Barrett v. Alguire, 35 P.3d 1, 7 (Alaska 2001) (“[T]he legal
standard in custody cases where one parent chooses to relocate is the same whether the
superior court has an initial custody determination or motion to modify custody before
it.”).
28
Andrea C., 355 P.3d at 528 (quoting Williams v. Barbee, 243 P.3d 995,
1005 (Alaska 2011)).
-15- 7184
although it noted Travis “has taken steps with assessments from” several treatment
providers, it concluded that these factors also favored Amanda. The court found that the
love factor favored neither parent because “[H.] loves both parents and they love him.”
But the court did not find that any best interests factors favored Travis.
Travis asserts that the superior court abused its discretion because “it did
not properly consider the statutory factors, especially the fostering factor.” Travis is
correct that this factor may be particularly weighty in the context of long-distance
relationships,29 but we disagree that the court failed to properly consider it. To counter
the court’s finding that there was little evidence “that [Travis] could or would promote”
a relationship between H. and Amanda, Travis points to testimony that he was a more
reliable conduit than Amanda was for communication between K. and K.’s father and
that he “was completely supportive of” a close relationship between his girlfriend’s
children and their father. But the superior court found more evidence on the other side
of the ledger. The court had earlier noted Amanda’s efforts to ensure that Travis
continued to see H. even when Travis failed to comply with the orders in place after
default. Amanda testified at the modification hearing that “it’s best to have two loving
families and for you to work together” and that she was willing to work “to keep [Travis
and H.’s] bond strong.” She proposed sharing visitation costs, having Travis read
“goodnight stories” by telephone, setting up video chat sessions, and sending letters.
Travis agreed that Amanda is “open to [his] input” on raising their son and that she
updates him when he asks.
29
See Silvan v. Alcina, 105 P.3d 117, 121 (Alaska 2005) (“It is essential to
have a custodial parent willing to foster an open relationship with the other parent when
a great distance separates the children from the non-custodial parent, and it is reasonable
for the superior court to place enhanced importance on this factor when making its
decision.”).
-16- 7184
Travis asserts that the superior court disregarded testimony from K.’s father
about difficulties in maintaining contact with K. through Amanda. But K.’s father also
testified that more recently he and Amanda had “been working really well together as far
as getting to talk to [K.].” Amanda testified that she had an easier time communicating
with K.’s father after she and Travis separated. The superior court expressly considered
the evidence on this issue, disagreed with Travis’s contention that Amanda “did not
provide an open, loving” relationship between K. and K.’s father, and found that
Amanda did and would promote the relationship between H. and Travis. Because the
superior court’s finding on the fostering factor primarily relies on oral testimony and
therefore “depends almost entirely on [the court’s] assessment of [witness] credibility,”
we give it “particular deference.”30
Travis also argues that the superior court “did not apparently pay heed to”
how well H. was doing in Fairbanks or to Travis’s home construction plans.31 It is true
that the court did not mention these specific facts in its order, but it did make the general
observation that Travis, “to his credit, has addressed a variety of issues and is becoming
more involved in [H.’s] life.” We cannot say that the court overlooked any significant
evidence or failed to adequately discuss the factors it considered determinative. The
court did not abuse its discretion in its decision that moving to Hawaii with Amanda was
in H.’s best interests.
30
Kristina B. v. Edward B., 329 P.3d 202, 214 (Alaska 2014) (citing Limeres
v. Limeres, 320 P.3d 291, 296 (Alaska 2014)).
31
Travis also argues that the superior court disregarded “concerns about
Amanda’s parenting of [H.]” and “an instance of serious alcohol abuse” involving
Amanda. But Travis cites his own affidavit for the allegations about Amanda’s
parenting, not testimony from the hearing. And the allegation of “serious alcohol abuse”
refers to testimony that Amanda once called Travis for a ride when she was too drunk
to drive, testimony the court could have viewed as favoring Amanda.
-17- 7184
D. It Was An Abuse Of Discretion To Modify Legal Custody.
The superior court’s order on modification also changed legal custody.
Although it found that “[t]he current record supports that the parties should have shared
legal custody,” the court ordered that “[i]n the event of a dispute regarding a legal
custody issue[,] [Amanda] may make the decision on behalf of [H.] but must file a
motion to affirm her decision within 10 days.” This was a change from the parenting
agreement’s decision-making mechanism, which required the parents to mediate disputed
legal custody issues and to “file a motion with the court to modify [their] parenting
agreement” if mediation did not succeed.
Amanda argues that the court did not modify legal custody at all but merely
“sharpened the definition of the legal custody parameters.” But Travis argues that the
change gave Amanda “the ability to usurp and over-ride any [dissension] from” him on
legal custody issues. We agree with Travis that the change was more than a simple
clarification. A mechanism by which Amanda has the final say, subject to later court
approval, gives her the ability to actually effect a change over Travis’s disagreement.
Although she must then follow up with a motion seeking the court’s approval of her
decision, the court is then put in the position of reviewing a status quo which it may be
hesitant to upend. And because of concerns for his son’s stability and continuity, Travis
may be less likely to challenge a change that has already gone into effect. In short, the
“modified legal custody” that the court imposed, while sometimes the best solution when
-18- 7184
written on a blank slate,32 is clearly a modification of the parties’ earlier agreement in this
case.
Because Amanda did not seek to modify legal custody, she did not allege
facts, or adduce evidence at the hearing, aimed at justifying such a modification; she
asserted in her motion that legal custody should remain as it was.33 Travis thus received
no notice that legal custody could be at issue and had no opportunity to present evidence
on the subject.34 And the court did not explain why it believed it necessary to modify the
existing decision-making mechanism. While an out-of-state move is a substantial change
in circumstances for physical custody purposes, it is not necessarily a substantial change
32
Ronny M. v. Nanette H., 303 P.3d 392, 404-05 (Alaska 2013) (citing the
legislative preference for joint legal custody but affirming the award of a “kind of
modified shared legal custody” where “[the parents] must communicate with each other
and attempt to agree on major decisions affecting the [children’s] welfare, but [one
parent] is given final decision-making authority should they fail to agree”).
33
We have held that legal and physical custody should be analyzed
separately, including in the determination of whether a change in circumstances justifies
modification. Collier v. Harris, 261 P.3d 397, 403 (Alaska 2011) (“[T]he court lumped
together [the parent’s] request to modify legal and physical custody, . . . [but] these two
types of custody must be analyzed separately.”).
34
See Debra P. v. Laurence S., 309 P.3d 1258, 1261 (Alaska 2013) (“[I]t was
a violation of [the parent’s] right to due process of law when the superior court made a
final custody and visitation decision after a hearing, which [the parent] reasonably
believed would resolve only interim custody and visitation issues.”).
-19- 7184
for legal custody purposes.35 Although one reason to modify legal custody is “sustained
noncooperation by one parent,”36 Amanda made no such allegations here.37
We conclude that it was an abuse of discretion to modify legal custody
when neither party requested it, the allegations in support of the modification motion did
not support it, and there was no notice that the court would consider it. We therefore
vacate the modification of legal custody.
V. CONCLUSION
For the foregoing reasons we AFFIRM the superior court’s modification
of physical custody but VACATE its modification of legal custody.
35
It is logical that an out-of-state move requires a change in physical custody:
distance interferes with frequent exchanges. But given the ubiquity of personal
technology, distance is no longer a significant barrier to quick communication or the
making of joint decisions about education, health care, and other important child-rearing
issues central to legal custody.
36
Collier, 261 P.3d at 405 (quoting Peterson v. Swarthout, 214 P.3d 332, 341
(Alaska 2009)).
37
There was some testimony about the parents’ ability to communicate with
each other, though it was inconsistent and neither one framed it as a legal custody
question. For example, Travis testified that he and Amanda “don’t communicate much”
but also that he contacted her “[e]very other day” when H. was staying with her.
-20- 7184