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Jenkins v. Handel (10/13/00) sp-5321

     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.


ERMA JENKINS,                 )
                              )    Supreme Court No. S-9122
             Appellant,       )
                              )    Superior Court No.
     v.                       )    1KE-87-918 CI
JOHN HANDEL,                  )    O P I N I O N
             Appellee.        )    [No. 5321 - October 13, 2000]

          Appeal from the Superior Court of the State of
Alaska, First Judicial District, Ketchikan,
                     Thomas M. Jahnke, Judge.

          Appearances: Michael J. Zelensky, Ketchikan,
for Appellant.  Bryan T. Schulz, Holman & Schulz, Ketchikan, for

          Before:   Fabe, Chief Justice, Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.  

          CARPENETI, Justice.

          Erma Jenkins appeals the superior court's denial of her
motion to modify custody.  Because the superior court carefully
considered and weighed the factors relevant to the best interests
of the children, we conclude that the superior court did not abuse
its discretion.  We therefore affirm.

     A.   Facts
          Erma Jenkins and John Handel lived together for
approximately ten years.  While living in Thorne Bay, they had two
children, A.H., born May 4, 1983, and L.H., born March 27, 1985. 
Jenkins and Handel never married.  The children have lived in
Thorne Bay since their birth. 
          The couple separated in 1987, and Jenkins filed for
custody of A.H. and L.H.  In August 1987 Jenkins moved to Castle
Rock, Washington, where her family lives.   
          In November 1988 the superior court awarded primary
physical custody of the children to Handel.  Jenkins was awarded
Christmas and summer visitation.  Handel was ordered to pay for the
children's transportation to Jenkins's home in Washington.  Jenkins
was also ordered to pay $100 per month in child support for ten
months of the year. 
          During the months of December 1992, 1994, and 1995,
Handel was unable to transport A.H. and L.H. to Castle Rock for
Jenkins's Christmas visitation.  When Jenkins raised this issue to
the superior court, the superior court awarded her extra visitation
in the summer.   
     B.   Proceedings
          In January 1997 Jenkins filed a motion to modify custody
and a motion for interim custody of A.H. and L.H.  She argued that
the court should award primary physical custody of the children to
her because they wished to live with her in Castle Rock.  In
support of her motion, she presented affidavits from A.H. and L.H.,
then thirteen and eleven years old respectively.  Jenkins further
argued that Handel should no longer have custody of the children
because he was uncooperative in complying with Christmas
visitation.  Handel opposed Jenkins's motions. 
          In May 1997 the trial court ordered that, in the future,
the party receiving A.H. and L.H. for visitation would pay for
their transportation.  However, the court delayed a ruling on
custody until after completion of a home study of Jenkins's living
conditions.  The home study stated, among other things, that: (1)
Jenkins had two DWI arrests, one in 1988 and one in 1996; (2) the
children wanted to stay with Jenkins; (3) both children reported
performing poorly in school in Thorne Bay; and (4) L.H. appeared to
be depressed.  The superior court denied Jenkins's motions and
ruled that Handel would continue to have primary physical custody
of A.H. and L.H.  Jenkins moved for reconsideration.  The trial
court denied her motion. 
          In August 1998 Jenkins again moved for interim custody
and modification of custody, arguing that Handel had been
uncooperative about the Christmas visitation, that her living
conditions had improved because she and her fianc‚ had just
purchased a new home, and that A.H. and L.H. preferred to live with
her.  She also moved for the appointment of a guardian ad litem to
represent the interests of A.H. and L.H.  The superior court
appointed Julie deBourguignon as guardian ad litem and denied
Jenkins motion for interim custody and modification of custody. 
          In denying the motion to modify custody, the superior
court ruled that the changes in circumstances, though substantial,
were insufficient to justify a change in custody.  The court
acknowledged the improvement in Jenkins's housing situation as well
as the preference of A.H. and L.H. to live with Jenkins.  But the
superior court found that the balance of factors, including
stability, the children's need for "skillful parental supervision," 
and Handel's ability to provide "more mature parental judgment," 
weighed in favor of maintaining the present custody arrangement. 
The existence of a romantic relationship between A.H. and a twenty-
year-old man living in Jenkins's hometown was especially
significant.  The court found that there was a need for parental
supervision and that Jenkins lacked vigilance in her supervision of
the children.   
          Jenkins filed a motion for reconsideration in March 1999 
which the superior court denied.  Handel was awarded $1,500 in
attorney's fees. 
          Jenkins appeals.
          The trial court has broad discretion in the determination
of child custody issues. [Fn. 1]  We will reverse a trial court's
resolution of custody issues only if, after a review of the entire
record, we are convinced that the trial court abused its discretion
or that the controlling factual findings made by the trial court
are clearly erroneous. [Fn. 2]  "Abuse of discretion is established
if the trial court considered improper factors or failed to
consider statutorily-mandated factors, or improperly weighted
certain factors in making its determination." [Fn. 3]  A factual
finding by the trial court will be found clearly erroneous when we
are "left with a definite and firm conviction on the entire record
that a mistake has been made, even though there may be evidence to
support the finding." [Fn. 4]
     A.   The Superior Court Did Not Err in Its Consideration of
the Child Custody Modification Factors. 
          Jenkins argues that the trial court erred in denying her
motion because it improperly weighed the custody factors. 
Specifically, she argues that the trial court: (1) gave
insufficient weight to the stated custody preference of the
children; (2) gave insufficient weight to her improved living and
working conditions; and (3) did not consider Handel's previous
noncompliance with Christmas visitation.  We reject each of these
          1.   The superior court properly considered and weighed
the appropriate factors in the best interests of the children.
          A motion to modify custody will be granted only if two
conditions are satisfied: (1) the non-custodial parent must
establish that a change in circumstances has occurred; and (2) the
modification must be in the best interests of the child. [Fn. 5] 
The required change in circumstance must be significant or
substantial, [Fn. 6] and must be demonstrated relative to the facts
and circumstances that existed at the time of the prior custody
order that the party seeks to modify. [Fn. 7]  
          The superior court's analysis of the circumstances in
this case took into account all of the relevant "best interests of
the child" factors set out in AS 25.24.150(c), [Fn. 8] including
the needs of A.H. and L.H., the capability of Jenkins and Handel to
meet those needs, A.H. and L.H.'s preferences, the relationship
between the children and their parents, and the stability of
keeping A.H. and L.H. in the same environment.  The superior court
acknowledged that substantial changes in circumstances had taken
place, especially with respect to Jenkins's housing situation. 
However, the court concluded that the balance of factors had not
shifted substantially in Jenkins's favor. 
          In support of its decision, the superior court stated
that it adhered to the analysis set out in its July 1997 order on
Jenkins's previous motion to modify custody.  In both decisions,
the superior court based its decision on five factors: (1) the
expectations of A.H. and L.H. that many of their complaints about
life would be eliminated by moving in with Jenkins were wrong; (2)
the stability of remaining in the same community in which A.H. and
L.H. were born and raised; (3) the relatively better ability of
Handel and his fianc‚e Jeannie Muir to meet A.H. and L.H.'s
emotional and parental support needs; (4) Jenkins's work schedule; 
and (5) Handel's superior housing situation.  The superior court
concluded in both instances that A.H. and L.H.'s preference to live
with Jenkins was outweighed by these five factors.  
          In this case, the superior court again found Handel and
his fianc‚e better situated to provide parental supervision and to
exercise "more mature parental judgment" in their dealings with
A.H. and L.H.  The superior court based this finding on Handel and
Muir's vigilance in monitoring the activities of A.H. and L.H., 
Muir's employment with the Thorne Bay School District, and the fact
that A.H. is more willing to truthfully confide in Muir than in
Jenkins.  While acknowledging the preference of A.H. and L.H. to
live with Jenkins, the superior court's ruling that their wishes
were outweighed by other factors is rationally supported. 
          2.   The superior court gave proper weight to A.H. and
L.H.'s desire to live with Jenkins.
          Jenkins contends that the superior court "gave too little
weight" to the clearly-expressed preference of A.H. and L.H., who
were fifteen and thirteen years old at the time of the court's
ruling, to live with her. 
          Alaska Statute 25.24.150(c)(3) requires superior courts
making a custody determination to consider the preference of a
child, if he or she is of sufficient age and capacity to form a
preference. [Fn. 9]  In Valentino v. Cote, [Fn. 10] we held that
the well-reasoned preference of a sixteen-year-old can be a
deciding factor in the superior court's decision to modify custody.
[Fn. 11]  The superior court's rationally supported conclusions in
this case provide a counterpoint to the facts in Valentino, in what
can be a delicate and difficult determination for the court. [Fn.
          The superior court interviewed A.H. and L.H. and took
their preference into account.  The superior court stated that it
was impressed with the way the teenaged A.H. and L.H. expressed
themselves in their interviews.  But the superior court concluded
that their preferences, and the reasoning behind them, evidenced a
great need for parental supervision and were outweighed by their
need for the "substantial guidance" that the court found Handel
better equipped to provide.  This conclusion is amply supported by
the record.
          First, A.H. and L.H.'s preferences are not mature and
well-reasoned.  Their desire to live with their mother is primarily
motivated by their desire for greater social and recreational
opportunities.  Additionally, the record shows that the romantic
involvement of the then fifteen-year-old A.H. with a twenty-year-
old man in Castle Rock played a major role in her desire to move in
with Jenkins.  According to deBourguignon, A.H. is "vocal about
wanting to move south" because "[t]here is a 20 year old man she is
involved with romantically, a relationship which her mother has not
discouraged."  The statements of deBourguignon are further
confirmed by the testimony of Handel's fianc‚e, Jeannie Muir, in
whom A.H. confided.  Muir testified that A.H. had told her that
A.H. and the young man were in love and having a sexual
relationship and that A.H. wanted to start taking birth control
pills before she went down to Castle Rock that Christmas.  In
addition, Muir, deBourguignon, and Handel all testified that they
had seen a letter from A.H. to the young man.  The letter, which
was opened without A.H.'s knowledge by Handel and Muir, contained
          Second, the superior court concluded that A.H. and L.H.
needed to be in an environment where their actions would be well-
supervised and monitored.  This conclusion was largely based on the
"different approaches by the adults" to A.H.'s relationship with
the young man.  Muir's testimony concerning A.H.'s admissions about
her relationship with the young man revealed that A.H. feels
comfortable enough to confide in Muir about important issues in her
life.  A.H. does not appear to have a similar relationship with
Jenkins, to whom she directly lied about her romantic liaison. 
Handel and Muir's behavior with respect to A.H.'s relationship with
the young man, including their concern and inquiries, reveals a
higher level of concern and supervision of A.H.'s activities than
Jenkins provides.  Also, Jenkins's work hours on afternoons and
weekends give her fewer opportunities to supervise A.H. and L.H. 
An additional factor supporting the superior court's analysis is
that Muir works for the Thorne Bay School District and has a work
schedule that keeps her home in the afternoon and on the weekends. 
          Third, the superior court concluded that A.H. and L.H.'s
preferences should not govern its custody decision because it
believed that the thirteen-year-old L.H.'s preferences were
influenced by A.H. and the adults in Castle Rock.  This is
supported by the record.  According to deBourguignon, L.H.'s
feelings were "greatly influenced by her sister" and L.H. "wants to
please [A.H.]."  Given that L.H.'s preference to live with Jenkins
was the product of the influence of others, the superior court did
not abuse its discretion in giving greater weight to other
important factors and in finding that Handel and Muir were in a
better position to provide supervision.  
          3.   The superior court's consideration of Jenkins's
changes in living and working conditions was not error.

          Jenkins also contends that the superior court did not
give sufficient weight to the improvement in her living and working
conditions.  In her motion to the superior court, she indicated
that she had purchased a new home with her fianc‚ and that her work
hours had improved substantially because she no longer worked a
"swing shift." 
          The superior court gave adequate consideration to these
matters.  The superior court explicitly recognized the substantial
improvement in Jenkins's housing situation, but it based its
ultimate decision on other factors.  The record supports the
superior court's findings, including A.H. and L.H.'s need for
parental supervision and the stability and continuity of keeping
A.H. and L.H. in the same home in which they were raised. 
          The superior court also did not abuse its discretion in
finding that the change in Jenkins's working conditions was not a
substantial improvement over her previous arrangements.  Under her
previous schedule, she worked a swing shift which enabled her to
spend only one hour during the day with A.H. and L.H.  She
testified at the hearing that she had been laid off but hoped to be
back to work soon.  Jenkins argues that she applied for a job which
would require her to work only three days a week on the day shift. 
However, she had not yet been offered this job.  Furthermore,
although the day shift work schedule would give her weekday evening
hours to spend with A.H. and L.H., she would still be at work
during the afternoons and evenings of every weekend.  The evidence
does not support Jenkins's contention that her work schedule has
changed for the better.  The superior court did not err in finding
that the changes to her work schedule did not strengthen her case. 
          4.   Failure to consider Handel's previous noncompliance
with the Christmas visitation was not error.

          Jenkins also argues that Handel's "unevenness" in
complying with the visitation order requiring him to send A.H. and
L.H. to Castle Rock for Christmas demonstrates that the "factor of
willingness to allow the other parent frequent and liberal
visitation" has shifted in Jenkins's favor.  Handel was unable to
send A.H. and L.H. to Castle Rock during the Christmases of 1992,
1994, and 1995. 
          The superior court addressed this issue in Jenkins's 1997
motion to modify custody and made an effort to avoid this problem
in the future by ordering that the party receiving the children
would make and pay for all transportation arrangements.  Nothing in
the record shows that Handel has not complied with the superior
court's visitation order since 1997.  Most importantly, as
discussed above, the superior court found many other factors to be
more important in determining that the present custody arrangement
is in the best interests of A.H. and L.H.  The superior court did
not abuse its discretion in placing little weight on this issue.
     B.   Jenkins Is Not Entitled to a New Hearing.
          Jenkins argues that the superior court violated her due
process rights by failing to "afford [her] discovery" of the letter
A.H. wrote to the young man, which contained condoms, and "material
confirming the affair."  She further contends that she is entitled
to a new hearing because the superior court's failure to provide
her with this material "harmed [her] interests as a party." 
Jenkins believes that Handel was able to withhold "information to
[his] successful advantage in this close litigation."  These
contentions lack merit.
          First, Jenkins has waived these arguments because she did
not raise them below. [Fn. 13]  Jenkins was made aware of the
letter's existence the day before the hearing; however, she did not
seek a continuance or any other relief on this ground prior to the
commencement of the hearing.  Jenkins also failed, on four
occasions during the hearing, to object to testimony about the
letter.  Additionally, the content of the letter was not disclosed
at the hearing.  Because Jenkins did not preserve her objection to
consideration of evidence concerning the letter at the hearing, she
cannot now raise the issue on appeal.
          Second, the superior court had no duty to provide the
letter to Jenkins.  There is no evidence in the record showing that
Jenkins requested disclosure of documents from Handel prior to the
hearing.  No discovery orders were entered in this case.  Indeed,
the superior court was unaware of the letter's existence prior to
hearing testimony.  
          Third, Jenkins's argument that her due process rights
were violated by nondisclosure of the letter fails because she had
notice of the letter one day prior to the hearing.  Furthermore,
the guardian ad litem's report filed in January 1999 gave her
notice of the purported affair between A.H. and the young man. 
This report explicitly stated that A.H. had indicated that she was
romantically involved with a twenty-year-old man in Castle Rock and
that Jenkins had not discouraged the relationship.  The record
shows that Jenkins was aware of this allegation because she
testified concerning conversations she had with A.H. about A.H.'s
romantic relationship and because she filed an objection to the
guardian ad litem's report in February 1999.  In her objection,
Jenkins explicitly acknowledged the guardian ad litem's statement
that A.H. was involved with a twenty-year-old.  Jenkins stated that
the allegation was false because "she [] polled [A.H.] and the 20-
year-old" on the matter.  Jenkins's response to the guardian ad 
litem's report demonstrates that she had adequate notice that
Handel or deBourguignon would attempt to raise the issue of A.H.'s
romantic relationship at the hearing.  Therefore, there was no
violation of Jenkins's due process rights.
          Because Jenkins waived her arguments concerning the
letter by failing to object, because the superior court had no
independent obligation to provide Jenkins a letter about which it
had no knowledge, and because Jenkins was aware of the affair
between her daughter and the young man well in advance of the
hearing, we conclude that Jenkins is not entitled to a new hearing. 
     C.   Omission of the Guardian Ad Litem's Report in the
Superior Court Order Was Not Error.

          Jenkins contends that guardian ad litem deBourguignon's
report was "objectionable" and that the superior court erred in
failing to mention the report which "must have had an impact" on
its decision.  Jenkins further argues that deBourguignon did not
fulfill her "duties of zealous representation and loyalty."  We
          1.   It was not error for the superior court not to
discuss the guardian ad litem in its order.

          The superior court's order provided a detailed discussion
of the elements that influenced its decision, including the
testimony of Jenkins, Handel, and Muir, and the statements made by
A.H. and L.H. in their interviews with the court.  None of the
deciding factors discussed in the order were derived solely from
deBourguignon's testimony or report; they were all drawn from or
supported by the testimony of others.  Jenkins's argument that
deBourguignon's report and testimony "must have had an impact on
the trial court's decision" is purely speculative.  The superior
court's conclusions are rationally supported by other evidence.  It
was not an abuse of discretion for the superior court not to
mention the guardian ad litem, or her report, in its order. 
          2.   The guardian ad litem was not disloyal to A.H. and
L.H.'s interests.
          Jenkins argues that deBourguignon did not fulfill her
duties as guardian ad litem because she advocated for custody to
remain with Handel despite the wishes of A.H. and L.H., thereby
forsaking her duties of loyalty and zealous representation. 
          This precise argument is directly refuted by AS
25.24.310(c), which provides that a guardian ad litem's duty of
advocacy is with respect to the child's best interests, not the
child's preferences. [Fn. 14]  In the present case, deBourguignon
did advocate in what she judged to be the best interests of A.H.
and L.H., which required consideration of their performance in
school,  their need for parental supervision, and the effects of
A.H.'s age-inappropriate romantic relationship.  In making her
determination, she took into account A.H. and L.H.'s fondness for
horseback riding, suggesting that they should be permitted to visit
their mother in the summer for this reason, as well as their
growing need for the freedom to make age-appropriate decisions. 
The record shows that deBourguignon did advocate in the best
interests of A.H. and L.H. as she perceived them.
          Jenkins also argues that deBourguignon violated her duty
as a guardian ad litem by failing to disclose to Jenkins the
existence of the letter that contained the condoms, thereby failing
to aid the fairness of court proceedings. 
          We have stated that a guardian ad litem's duties do not
extend to other parties in the litigation. [Fn. 15]  As guardian ad 
litem, deBourguignon's duties did not require her to disclose the
existence of the letter given the previous disclosure of the
existence of the relationship between A.H. and the young man.  The
guardian ad litem's failure to disclose the existence of the letter
to Jenkins was not improper.
          The denial of Jenkins's motion to modify custody was not
an abuse of discretion.  We therefore AFFIRM.


Footnote 1:

     See Valentino v. Cote, 3 P.3d 337, 339 (Alaska 2000).

Footnote 2:

     See Gratrix v. Gratrix, 652 P.2d 76, 79-80 (Alaska 1982).

Footnote 3:

     Id. at 80.

Footnote 4:

     Dingeman v. Dingeman, 865 P.2d 94, 96 (Alaska 1993) (quoting
Brosnan v. Brosnan, 817 P.2d 478, 480 (Alaska 1991)). 

Footnote 5:

     See AS 25.20.110(a) ("An award of custody of a child . . . may
be modified if the court determines that a change in circumstances
requires the modification of the award and the modification is in
the best interests of the child."); see also Nichols v. Mandelin,
790 P.2d 1367, 1372 (Alaska 1990); see also S.N.E. v. R.L.B., 699
P.2d 875, 878 (Alaska 1985) (noting that the burden of proving
change in circumstances is on moving parent).

Footnote 6:

     See Nichols, 790 P.2d at 1372; S.N.E. v. R.L.B., 699 P.2d at

Footnote 7:

     See King v. King, 477 P.2d 356, 359 (Alaska 1970).

Footnote 8:

     AS 25.24.150(c) provides:

               The court shall determine custody in
accordance with the best interests of the child under AS 25.20.060
-  25.20.130.  In determining the best interests of the child the
court shall 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 desire and ability of each parent to
allow an open and loving frequent relationship between the child
and the other parent;
          (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

Footnote 9:

     AS 25.24.150(c)(3).

Footnote 10:

     3 P.3d 337 (Alaska 2000).

Footnote 11:

     See id. at 340-41.  See also Veazey v. Veazey, 560 P.2d 382,
390 n.11 (Alaska 1977) (overruled by statute on other grounds)
(suggesting that while young child's preferences are often
unreliable as he or she can be easily influenced by behavior of his
or her parents, "a relatively mature teenager's reasoned preference
is not so lightly to be disregarded").

Footnote 12:

     See Sanguinetti v. Sanguinetti, 628 P.2d 913, 916 (Alaska
1981) ("We have repeatedly stated that child custody determinations
are among the most difficult in the law. . . .").

Footnote 13:

     See Reid v. Williams, 964 P.2d 453, 456 (Alaska 1998) ("We
will ordinarily not consider issues unless they were raised in the
trial court.").

Footnote 14:

     AS 25.24.310(c) provides, in relevant part, that "[t]he court
shall require a guardian ad litem when, in the opinion of the
court, representation of the child's best interests, to be
distinguished from preferences, would serve the welfare of the
child."  See Sanguinetti, 628 P.2d at 916 (noting that guardian ad 
litem's duty is to protect best interests of child).

Footnote 15:

     See Karen L. v. State, Dept. of Health and Social Servs.,  953
P.2d 871, 878 (Alaska 1998).