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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Barrett v Alguire (11/16/2001) sp-5502

Barrett v Alguire (11/16/2001) sp-5502

     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.


ERIC E. BARRETT,              )
                              )    Supreme Court No. S-9934
             Appellant,       )
                              )    Superior Court No.
     v.                       )    1KE-96-197 CI
KATHERINE M. ALGUIRE,         )    O P I N I O N
             Appellee.        )    [No. 5502 - November 16, 2001]

          Appeal from the Superior Court of the State of
Alaska, First Judicial District, Ketchikan,
                   Michael A. Thompson, Judge.

          Appearances: Dennis L. McCarty, Ketchikan, for
Appellant.  Loren K. Stanton, Ketchikan, for Appellee.

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

          CARPENETI, Justice.

          Eric Barrett appeals the superior court's child custody
determination changing primary physical custody of the parties' two
children from him to Katherine Alguire (formerly Barrett).  Because
the superior court applied the correct legal standard to
Katherine's motion to modify custody based on the changed
circumstance of Eric moving out of Alaska with the children, and
because the court's best interests findings were not clearly
erroneous, we affirm the custody modification.
          Katherine Alguire and Eric Barrett were married in
February 1988 in Metlakatla.  Katherine is an Alaska Native from
the Tsimshian tribe in Metlakatla, where most of her relatives
still live.  During the marriage, the parties had two sons: Tyler
was born in June 1990, and Jeremy was born in July 1992.  The boys
were raised in Ketchikan. 
          In 1994 Katherine and Eric separated, but both remained
in Ketchikan.  During much of the separation Katherine had custody
of the children.  The parties filed a petition for dissolution in
May 1996; their marriage was dissolved in August 1996.  Eric took
custody of the children prior to the dissolution and, as the
parties agreed, was awarded primary physical custody when the
dissolution was finalized.  The parties noted in their child
custody agreement that they were not setting a specific visitation
schedule because they would "be able to amicably decide in the
future on reasonable visitation times."  The parties agreed to
joint legal custody.  The superior court was not called upon to
make a determination of the children's best interests.  The
parties' agreement did not envision the possibility that Eric would
move out of Ketchikan.
          Eric has a substance abuse problem.  During the marriage,
Eric was twice charged with driving while intoxicated -- once in
1992 and again in 1995.  Eric has been in detoxification programs
on several occasions, but has had problems complying with aftercare
programs.  In early 1998 Eric went to Charter North in Anchorage
for treatment for what he called depression, which he was dealing
with by drinking too much. [Fn. 1]  Eric has been to KAR House in
Ketchikan for alcohol related treatment.  He also underwent
counseling for a time beginning in April 1998. 
          From late 1996 until his departure for Washington, Eric
was employed at the White Cliff School in Ketchikan as a teacher's
aide for special needs children. 
          After the dissolution in 1996, Katherine had Tuesdays and
Wednesdays off from work.  Initially Eric gave her visitation with
the boys one day a week, but he changed this to two days a week
during her days off.  In the fall of 1998, Jeremy's teacher,
Kathleen Poulson, reported that Jeremy was tired in school.  Eric
decided that the boys should visit Katherine on the weekends
instead of during the week on her days off, even though Katherine's
work schedule would prevent her from seeing the boys much during
their visits.  Initially the change was to be for every weekend,
but Eric soon decided that she should have the boys only every
other weekend.  Katherine's visitation remained at every other
weekend until Eric moved to Washington with the boys. 
          In 1998 Katherine met John Alguire, a Ketchikan police
officer.  In early 1999 they married.  John has three children from
a prior marriage.  John and Katherine also had a son together in
1999.  They live in Ketchikan in a five-bedroom home.  Their other
children stay with them on differing schedules. 
          In April 2000 Eric decided to move to Shelton, Washington
with the boys in order to return to school to get a teaching
certificate.  Several of Eric's family members live in Shelton. 
          On May 10 Katherine filed a motion to modify custody. 
She stated in her affidavit that she "believe[d] Mr. Barrett is
going to be leaving Ketchikan for good at the end of the school
year" but that he did not tell her the exact date he was planning
on leaving.  On May 22 Eric opposed her motion, claiming that
Katherine had failed to allege a material change in circumstances
justifying modification of custody.  He acknowledged in his
affidavit that he "hope[d] to attend college to obtain a teaching
certificate" and that if he left Ketchikan he would likely move to
Shelton.  In her reply affidavit, dated May 26, Katherine argued
that Eric's intended relocation supported her claim that a material
change in circumstances existed.  
          On June 5 Eric and the boys left Ketchikan for Shelton,
the same day that Katherine returned to Ketchikan from a previously
planned trip to Las Vegas.  Katherine did not have an opportunity
to see the boys before they left. 
          On June 12 Superior Court Judge Michael A. Thompson
issued an order concluding that Eric's move to Washington was a
material change of circumstances, warranting a hearing on
Katherine's motion, and setting a hearing for July 19.  The hearing
ultimately took place on August 24.  The court ruled from the
bench, concluding that, in light of Eric's move to Washington, the
factors of AS 25.24.150(c) favored awarding primary physical
custody to Katherine. [Fn. 2]  This conclusion was based primarily
on two grounds: (1) Eric had uprooted the children from what had
been a stable environment that served the children's social,
cultural, and emotional needs; and (2) Eric had a problem with
alcohol abuse that he denied.  Eric was awarded visitation during
spring break as well as substantial summer visitation; the parties
were to alternate visits during other holidays. 
          Eric appeals the award of primary physical custody to
          Whether the superior court applied the correct standard
of review is a question of law we review de novo, determining the
rule of law in light of precedent, reason, and policy. [Fn. 3]
          The trial court has broad discretion in determining child
custody issues; resolution of those issues will be reversed "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. 4] 
Improperly weighting certain factors may be an abuse of discretion.
[Fn. 5]  Factual findings are clearly erroneous if, on the basis of
the entire record, we are "left with a definite and firm conviction
. . . that a mistake has been made, even though there may be
evidence to support the finding." [Fn. 6]
     A.   The Superior Court Applied the Correct Legal Standard.
          Eric argues that the superior court improperly treated
Katherine's motion as if it were an initial custody proceeding
instead of a modification proceeding.  He contends that the trial
court must apply a three-step analysis when determining whether to
modify custody.  Eric also argues that Katherine had a heavy burden
to prove that modification was warranted, which she did not
satisfy.  We disagree on all points.
          1.   Custody modification requires that two conditions
be satisfied.
          Eric contends that there is a three-step analysis for
modification of custody: (1) a material, substantial change must
exist relative to the prior custody arrangement; (2) the change of
circumstances must require modification; and (3) the modification
must be in the best interests of the child.  However, as we have
repeatedly held, [Fn. 7] Alaska law establishes only two conditions
that must be satisfied before a motion to modify custody will be
granted: "An award of custody of a child or visitation with the
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." [Fn. 8]  (The
second of those conditions incorporates the last two steps
suggested by Eric.)  We turn to these two conditions now.
               a.   Changed circumstances
          The non-custodial parent must first establish that a
change in circumstances has occurred. [Fn. 9]  "The required change
in circumstance must be significant or substantial, 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. 10]  The moving parent bears the burden of making a
prima facie showing of a substantial change of circumstance as a
threshold matter. [Fn. 11] 
          We have held that "a custodial parent's decision to move
out-of-state [with the children] amounts to a [substantial] change
in circumstances as a matter of law." [Fn. 12]  Thus, the moving
party is entitled to a hearing on a motion to modify custody as a
matter of law based on a showing that the custodial parent has
moved or intends to move.
          In this case, where the parties' prior custody agreement
makes no mention of the possibility that Eric might relocate
outside of Alaska, Katherine met her threshold burden of showing a
material change in circumstances -- Eric not only indicated his
desire to relocate, he did relocate out of state with the children. 
               b.   Best interests of the child
          Once the moving party makes the threshold showing of a
material change in circumstances in a case where there was no prior
judicial determination of the children's best interests, then the
moving party is entitled "to a hearing to consider whether, in
light of such changed circumstances, it is in the child's best
interest to alter the existing custodial arrangement." [Fn. 13]  In
cases where one parent chooses to relocate outside Alaska,
particularly where the parties' prior custody agreement makes no
mention of this possibility, the court must determine the custody
arrangement that is in the best interests of the child under the
criteria stated in AS 25.24.150(c), [Fn. 14] including assessing
whether there are legitimate reasons for the move. [Fn. 15]  "The
court is to assess the best interests in light of all of the
relevant factors, including the impact of the move on the child. .
. . [T]he custody determination must be made in light of each
parent's situation, including relocation." [Fn. 16] 
          Eric cites numerous cases for the proposition that
changed circumstances must be substantial relative to the
circumstances at the time custody was previously determined.  This
is correct. [Fn. 17]  Eric then argues that his move out of state
is not, of itself, sufficient to warrant modifying custody.  But
this argument ignores the fact that once changed circumstances are
shown (such as his relocation with the boys), the superior court is
then obligated to conduct a best interests analysis, which includes
consideration of the reasons for relocation. [Fn. 18]  The query on
appeal then becomes whether the trial court's determination as to
the best interests of the children, under all of the relevant
statutory factors, is an abuse of discretion or clearly erroneous,
not whether the move in and of itself warrants modification.
          Eric also appears to argue that the trial court's finding
that he had been doing a good job parenting the boys means that
there were no changed circumstances warranting modification of
custody and that the trial court erred by ordering the change in
custody based on his move to Washington.  But because a custodial
parent's decision to relocate constitutes changed circumstances as
a matter of law, the length of time the children have been with the
custodial parent is merely one of the factors the court considers
in making its best interests determination. [Fn. 19]  
          The trial court in this case properly applied the legal
standard for a custody modification where one parent chooses to
relocate outside Alaska.  After Katherine met her threshold burden
of showing changed circumstances based on Eric's relocation out of
state with the boys, the court held a hearing on Katherine's motion
to modify custody.  The trial court made findings under each of the
factors of AS 25.24.150(c), in light of Eric's move to Washington
and its impact on the boys.  The court heard extensive evidence
with regard to Eric's ability to parent, his problems with
substance abuse, his failure to allow Katherine the liberal
visitation she thought she would get under their initial agreement,
as well as evidence of Katherine's ability to provide for the
children, and the environment in which they had grown up.
          The court concluded that factors (1) physical, emotional,
mental, religious, and social needs, (5) stability and continuity
of the children's environment, (6) ability to allow the maintenance
of an open and loving relationship between the children and the
other parent, and (8) substance abuse, favored Katherine; that
factor (7) domestic violence, was not applicable; and that the
parties were equal as to factors (2) parents' ability to meet
children's needs, (3) children's preferences, and (4) love and
affection between parent and children.  The court also considered
the impact of the move on the children, especially with regard to
the factor of desirability of continuity, as well as the legitimacy
of the reasons for the move, when it concluded that the best
interests of the children required awarding custody to Katherine. 
          2.   The legal standard for custody determinations when
one parent relocates out of state is the same for initial and
modification determinations.
          Eric contends that there are different requirements for
an initial custody determination and for a modification of custody,
and argues that because the court treated this as an initial
custody determination, reversal is warranted in this case.  This
argument is without merit.  In McQuade v. McQuade [Fn. 20] we held
that the 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.  We
reiterated this principle recently in Moeller-Prokosch v. Prokosch.
[Fn. 21]
     B.   The Superior Court Did Not Err in Determining the Best
Interests of the Children.
          Eric contends that the superior court erred when it: (1)
began its determination by not giving the prior custody agreement
sufficient weight; (2) failed to give adequate weight to Eric's
ability to parent the children; (3) incorrectly considered the
stable environment factor when it failed to consider that there was
no evidence of an adverse effect on the boys from the move to
Washington and when it gave too much weight to the cultural and
social need of the boys to be near their Tsimshian relatives; and
(4) gave too much weight to evidence of substance abuse that was
out of date and immaterial, especially given the favorable
testimony of Eric's co-workers. 
          Katherine argues that the court's findings are supported
by the record, are not clearly erroneous, and that the court did
not abuse its discretion.  We agree.
          1.   The prior custody agreement
          Eric argues that his previous custody of the children
should have been given more weight.  But the trial court was not
required to do so.  Alaska Statute 25.24.150(c) sets forth the
factors the court is to consider in custody determinations,
including those factors that "the court considers pertinent." [Fn.
22]  While the parties' custody agreement "has no binding force on
the court . . . [because t]he court must independently determine
what arrangement will best serve the child's interests," [Fn. 23]
especially in a case where circumstances had changed because of the
custodial parent's decision to move out of state, a trial court in
these circumstances should give a prior custody agreement the
weight it deserves in light of all the events that have transpired
since it was entered.
          The trial court's treatment of the prior custody
agreement was not an abuse of discretion.  The trial court stated
that "[t]his is the long postponed trial in this case, this is what
should have happened in 1996."  The court made it clear that
because it found that the initial agreement "did not in fact
entirely represent or reflect [Katherine's] understanding of what
it was supposed to be," [Fn. 24] the court did not "give the
original agreement very much weight."  The court stated that it
would treat the parties as "largely equal, except as previous
conduct has an impact on the factors listed in [AS] 25.24.150." 
This was not an abuse of discretion.
          The court also found that Eric had inappropriately
ignored Katherine's desire to exercise the visitation she thought
they had agreed to.  This finding is supported by the record. 
Katherine testified that at the time of the parties' dissolution,
she thought she was agreeing that she would have liberal visitation
with the two boys.  She also testified that Eric thereafter made
decisions about changes in the visitation schedule without
consulting her.  Eric testified on both direct and cross-
examination that he told Katherine what the visitation schedule
would be.  He also testified that he told Katherine he was going to
leave Ketchikan but not when.  The court found that because Eric
had custody, he had control over the children and that he did not
"go out of his way" to allow Katherine to cultivate a relationship
with the boys.  This finding is not clearly erroneous.  
          The superior court was not required to accord the
parties' agreement great weight.  And we "give due regard to the
trial judge's opportunity to judge the credibility" of the
witnesses [Fn. 25] because, in this case, the court's decision to
accord the initial agreement little weight was based in part on the
testimony of the parties.  We therefore conclude that the trial
court did not abuse its discretion in the weight it accorded the
prior custody agreement. 
          2.   Ability to care for the children
          Eric's contention that the court did not give adequate
weight to his parenting skills, and the four and a half years that
he exercised those skills, is unsupported.  The trial court found
that the parties were equal with respect to factor two -- the
capacity and desire of the parent to meet the needs of the child,
[Fn. 26] concluding that both Eric and Katherine had demonstrated
the ability to care for the children.  While there was little
negative evidence as to Eric's ability to parent, there was no
negative evidence as to Katherine's parenting skills. [Fn. 27]  The
court's finding that the parties were equal on this factor is
supported by the record.
          The witnesses offered by Eric to support his parenting
ability were all professional acquaintances who saw him in settings
outside the home, such as work or social gatherings.  Kathy Poulson
worked with Eric and had taught his children.  Terri Robbins was a
special needs teacher who also had worked with Eric and observed
him at work.  Maggie Freitag was a classroom volunteer and her
daughter was a friend of the parties' boys.  Adrianna Moss was a
teacher at White Cliff School who had observed Eric at work and
around his children.  None of these witnesses had seen Eric under
the influence of alcohol, although both Kathy Poulson and Terri
Robbins knew that he had received treatment for alcohol abuse. 
          Eric's former girlfriend, Lori Ann Thomas, was subpoenaed
by Katherine to testify.  Lori Ann met Eric in 1996; they started
dating in 1997.  They dated, on and off, for approximately fifteen
months, with the relationship ending near the end of 1998.  Over
the course of their relationship, Lori Ann had the opportunity to
observe Eric in his home, and she testified that his drinking
problem had a negative impact on the children.  Her testimony
concerning Eric's substance abuse problem is discussed in more
detail below.
          On her own behalf, Katherine testified that she wanted to
care for both of her boys.  No evidence that Katherine could not
care for the children was presented.
          Eric contends that there was no negative evidence
regarding the social or educational development of the boys.  But
the court properly took into account the boys' satisfactory
development, Eric's parenting skills, and the care he had given
them.  The finding that this factor was neutral because both
parents were equally capable of parenting the children is thus not
clearly erroneous.  The weight the court accorded this factor was
not an abuse of discretion.
          3.   Stable environment
          Eric contends that the trial court erred when it
concluded that the children's stable environment was their
community in Ketchikan, not the home Eric provided.  We disagree. 
The trial court's consideration of the stability of the children's
environment in a custody modification case can encompass a
multitude of factors, including, but not limited to, the
relationship with the custodial parent, the home provided by the
custodial parent, the children's school, the community of friends
and family, the cultural community, and the children's relationship
with the non-custodial parent.  It also includes stability of
place. [Fn. 28]  The trial court's difficult task is to examine all
of these factors and determine, in each case, which predominate. 
Here, Judge Thompson found that maintaining the children's
relationships with their school, community of friends and family,
the cultural community, and their mother outweighed maintaining the
relationship with their father.  This decision was not an abuse of
discretion.  As we stated in House v. House, "[t]he purpose of
maintaining stability in custody arrangements is . . . defeated by
the custodial parent's decision to leave Alaska." [Fn. 29] 
               a.   The move to Washington
          Eric argues that there was no evidence of a negative
impact on the boys from the move.  But the court was required to
consider all factors that "directly affect the well-being of" the
children, [Fn. 30] and the absence of negative impact from the move
does not automatically mean that custody should remain unchanged. 
The same is true for the length of custody in the context of the
"stable environment" factor.  Both are factors the court is to
consider in its bests interests analysis -- and that is what was
done here.
          Moreover, Eric's argument ignores several impacts of the
move on the boys: the restrictions on their ability to see their
mother and to have access to their native heritage and the
community in which everyone agreed they had developed so well.  In
this case, the court found that Eric's relocation was a substantial
change in circumstances, and the change was magnified, because the
parties did not have the money to fly back and forth between Alaska
and Washington.  The visitation arrangement would thus be severely
impacted by Eric's move.  The court also found that the evidence
showed that the "stable environment" provided for the boys by Eric
was not his actual home, but instead was based in their school and
community of friends and relatives in Ketchikan, and that it was
Eric who was changing that stable situation.  The court found that
even though Eric had "perfectly sensible reasons for leaving" it
was the best interests of the children that the court was
considering, not Eric's.  The court then concluded that had Eric
chosen to remain in Ketchikan, the parties would have been equal on
this factor but because Eric had chosen to leave and uproot the
children, Katherine had gained "a small edge" regarding this
factor.  This conclusion is supported by the record. 
          Three of Eric's witnesses testified that they thought
both of the boys were doing well at White Cliff School and would
continue to do so.  None of these witnesses had any knowledge of
the impact of the move on the boys. Terri Robbins thought the boys
would do well if they remained at White Cliff School. 
          As discussed below, [Fn. 31] the court found that while
the boys would have access to various native tribes in Washington,
such access was not as meaningful to the boys as the proximity to
the Tsimshian culture they would have in Ketchikan. 
          The court was also troubled by Eric's failure to include
Katherine in the decision to move.  Eric testified that he told
Katherine, over the phone, about the move but not about what date
he had in mind.  And he left Ketchikan with the boys, knowing
Katherine was out of town on a trip, without telling her when he
would be leaving. [Fn. 32]  
          While Eric has family in Shelton to whom the boys had
previously had some access, all the evidence showed that the boys
were doing well in a good school in Ketchikan, that the boys'
Tsimshian culture would be absent from their life in Shelton, and
that Katherine could care for them.
          The court's determination of what custody arrangement is
in the best interests of the boys requires it to consider all of
the factors that "directly affect the well-being of" the children,
[Fn. 33] not merely whether the move to Shelton will adversely
affect the boys.  The court's finding that keeping the boys in
Ketchikan was better for them than moving to Shelton is supported
by the record. 
               b.   Native ancestry
          The other significant basis for the court's custody
determination was the court's finding on factor five that, in this
case, the stable environment was the children's school and social
surroundings in Ketchikan, not the home Eric provided, and that
Eric was the one disrupting that stability.  The superior court
concluded that "social" needs include "cultural" needs, and that
living in Washington and having access to northwest coast tribes,
but not the boys' Tsimshian culture in Metlakatla, was insufficient
to meet this social need of the children.  
          Eric argues that there was no evidence that Katherine had
tried to bring the boys into their native culture.  But Katherine
testified that the boys had seen their Tsimshian relatives on at
least two occasions, that she would expose them to that culture
more if she had custody, and that she believed it to be an
important part of their upbringing that they would not get in
          The superior court's finding that proximity to the
Tsimshian culture was an important part of the boys' social needs
is not clearly erroneous.  It is uncontroverted that in Washington
they would be exposed only to various northwest coast tribes, not
their Tsimshian culture.  And both parents agreed the boys' native
heritage was an important element in their upbringing. 
          4.   Substance abuse
          Eric argues that the court gave too much weight to
evidence of substance abuse and his problems with alcohol, noting
that there was no "recent, competent, material evidence" as to any
adverse effect on the boys.  Because Eric has an established
problem with alcohol abuse, and because there was evidence of
continued drinking and denial on Eric's part as to his alcohol
problem, we conclude that the trial court did not abuse its
discretion in weighing this factor.  The court's consideration of
Eric's use and abuse of alcohol, especially with regard to his
attitude towards an established substance abuse problem, was
appropriate because there was evidence that his conduct had
directly affected the boys and there was no evidence of substance
abuse by Katherine.
          The superior court found that Eric was in denial about
his problem with alcohol and that his failure to complete treatment
programs coupled with two DWI convictions justified weighing this
factor heavily against him.  This was neither clearly erroneous nor
an abuse of discretion.  Katherine testified that Eric frequently
drank to the point of intoxication during their marriage.  Both
Katherine and her husband testified that they had, on separate
occasions after the dissolution, seen Eric in an intoxicated state
and when he "had been drinking."  On at least one of the latter
occasions, he had the children with him and was driving. 
          Lori Ann Thomas, who was formerly involved with Eric in
a dating relationship during 1997 and 1998, testified that Eric was
a "wonderful nurturing father, for the most part."  But Eric
incorrectly claims that she provided "no evidence of any adverse
impact upon the boys from any alleged consumption" of alcohol. 
Lori Ann testified that their relationship was tumultuous because
of Eric's alcoholism.  She stated that his drinking "was out of
control," that on one occasion he had left the house after
Thanksgiving dinner in 1997 at around 9:00 p.m. and went to a
friend's house where he remained, drinking, until 3:00 in the
morning.  Lori Ann also testified that after Eric's return from
Charter North in early 1998, they became involved again but that he
continued to drink.  She recounted an incident in April of 1998
when Eric kept the boys home from school, went on a drinking binge
and passed out at his home.  Lori Ann left work that morning and
took the day off to help Eric; she "took him to Gateway to talk to
a counselor there, who recommended that he go into KAR House."  She
testified further that Eric was a secretive drinker but that he
drank in front of the children, and that she believed it affected
his children negatively. 
          While direct evidence of Eric's drinking was over two
years old at the time of the hearing, circumstantial evidence of
Eric's use of alcohol was less than one year old at that time. 
Lori Ann testified that only a couple of months before the hearing
she saw him purchase a twelve-pack of beer from a liquor store and
then drive away with the boys.  Indeed, she testified that the
reason she broke up with Eric was because he was drinking while
caring for her son. 
          When asked whether or not he had a problem with alcohol,
Eric expressly denied ever having had a problem with alcohol,
despite his acknowledgment of having been in several treatment
programs for alcohol abuse.  And Eric's credibility was impeached
on several occasions, most notably with regard to his denial of an
alcohol problem and his denial of having been charged and convicted
of driving with a revoked driver's license. [Fn. 34] 
          The trial court did not believe Eric's testimony that he
had no substance abuse problem.  The court found that Eric had a
problem with alcohol abuse, that he was in denial about that
problem, and that this weighed heavily against him in the best
interests analysis.  Eric's proven alcohol problem was properly
weighed against him, once the court found that it directly affected
the boys.  The trial court's findings are supported by the record
and are not clearly erroneous.  The weight given to this factor was
not an abuse of discretion.
          Because the trial court applied the correct legal
standard for custody cases where one parent chooses to relocate out
of state, because its findings are supported by the record and are
not clearly erroneous, and because the weight the trial court gave
the statutory factors was not an abuse of discretion, we AFFIRM.


Footnote 1:

     The parties dispute whether he completed this program. 
Katherine testified that Eric spent only two days at Charter North, 
while Eric testified that he spent seventeen days there and
completed the program. 

Footnote 2:

     The court found that factors (1) [physical, emotional, mental,
religious, and social needs of the child], (5) [length of time in
stable environment and continuity of that environment], (6) [desire
and ability to allow other parent to maintain open and loving
relationship], and (8) [substance abuse] favored Katherine.  The
other factors were either evenly balanced between the parties --
factors (2) [capacity and desire of parent to meet children's
needs] and (4) [love and affection between parent and children] --
or were not applicable -- factors (3) [preferences of the children]
and (7) [domestic violence]. 

Footnote 3:

     See McQuade v. McQuade, 901 P.2d 421, 423 (Alaska 1995)
(citing Cox v. Cox, 882 P.2d 909, 913 (Alaska 1994)).

Footnote 4:

     Jenkins v. Handel, 10 P.3d 586, 589 (Alaska 2000).

Footnote 5:

     See Borchgrevink v. Borchgrevink, 941 P.2d 132, 134 (Alaska
1997) ("An abuse of discretion has occurred if 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

Footnote 6:

     Jenkins, 10 P.3d at 589.

Footnote 7:

     See id.; Valentino v. Cote, 3 P.3d 337, 340 (Alaska 2000);
Nichols v. Mandelin, 790 P.2d 1367, 1372 (Alaska 1990); S.N.E. v.
R.L.B., 699 P.2d 875, 878 (Alaska 1985).

Footnote 8:

     AS 25.20.110(a).

Footnote 9:

     See Jenkins, 10 P.3d at 589.

Footnote 10:

     Id. (internal citations omitted).

Footnote 11:

     See Harrington v. Jordan, 984 P.2d 1, 3 (Alaska 1999); Long v.
Long, 816 P.2d 145, 150 (Alaska 1991) (citing Lee v. Cox, 790 P.2d
1359, 1361 (Alaska 1990)).

Footnote 12:

     Acevedo v. Liberty, 956 P.2d 455, 457 (Alaska 1998) (citing
House v. House, 779 P.2d 1204, 1207-08 (Alaska 1989)).

Footnote 13:

     Lee, 790 P.2d at 1361.

Footnote 14:

     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 pertinent. 

Footnote 15:

     See McQuade v. McQuade, 901 P.2d 421, 424 (Alaska 1995);
House, 779 P.2d at 1208; see also Moeller-Prokosch v. Prokosch, 27
P.3d 314, 316 (Alaska 2001).

Footnote 16:

     See Moeller-Prokosch, 27 P.3d at 317.

Footnote 17:

     See, e.g., Jenkins v. Handel, 10 P.3d 586, 589 (Alaska 2000).

Footnote 18:

     See McQuade, 901 P.2d at 423 n.6 & 424 ("Thus, in making a
custody determination where the existing custodial parent chooses
to move out of state, a court must consider the best interests of
the children by applying the criteria in AS 25.24.150(c), and in so
doing should consider whether there is a legitimate reason for the

Footnote 19:

     See AS 25.24.150(c)(5).

Footnote 20:

     901 P.2d at 423 n.6.

Footnote 21:

     27 P.3d at 316.

Footnote 22:

     AS 25.24.150(c)(9).

Footnote 23:

     McLain v. McLain, 716 P.2d 381, 385 (Alaska 1986) ("Trial
courts, not parents, are the ultimate decision makers as to custody
and are not bound by private agreements. . . .  Courts have
sometimes refused to be bound by custody stipulations even when
both parents stand by their agreement.").

Footnote 24:

     Katherine testified that she had believed that she would be
allowed liberal visitation but that what in fact had occurred was
that Eric controlled visitation without consulting her.  Eric did
not deny that he had told her what visitation would be, that he
changed it at his whim, and that he did not discuss his pending
move with Katherine in any detail. 

Footnote 25:

     See Evans v. Evans, 869 P.2d 478, 480-81 (Alaska 1994) (citing
Parker v. Northern Mixing Co., 756 P.2d 881, 892 (Alaska 1988)).

Footnote 26:

     AS 25.24.150(c)(2).

Footnote 27:

     The court also found that Katherine's capability to meet the
children's needs might exceed Eric's because of her new home and
nuclear family -- but the court expressly found the parties to be
equal on this factor and thus did not give Katherine any preference
due to her remarriage.  See West v. West, 21 P.3d 838, 843 (Alaska
2001) (concluding that "custody should not [be] determined by an
expressed preference for the advantages of a 'two-parent
household'" without case-specific evidence).

Footnote 28:

     See, e.g., Elliott v. Settje, 27 P.3d 317, 320-21 (Alaska
2001); Evans, 869 P.2d at 482.

Footnote 29:

     779 P.2d 1204, 1207 (Alaska 1989) (holding that decision to
move out of state with children constituted material change in
circumstances because of "potentially disturbing and upsetting
change" warranting hearing on issue to determine children's best

Footnote 30:

     AS 25.24.150(d).

Footnote 31:

     See infra Part IV.B.3.b.

Footnote 32:

     Katherine testified that she only knew of the impending move
because Tyler told her.  When she asked Eric about the move, he
would not tell her when he would be leaving.  Katherine had asked
Eric about switching weekends with the boys to accommodate a trip
she was taking to Las Vegas.  But he left with the boys the same
day she returned from her trip, and it was not possible for the
boys to see her before they left. 

Footnote 33:

     AS 25.24.150(d).

Footnote 34:

     In 1998 Eric was charged and convicted of driving without a
valid driver's license, a misdemeanor.  1KN-98-1005CR.