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Moeller-Prokosch v. Prokosch (10/01/2004) sp-5834
Moeller-Prokosch v. Prokosch (10/01/2004) sp-5834
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
FAITH M. MOELLER-PROKOSCH, )
) Supreme Court No. S-11146
Appellant, )
) Superior Court No. 3PA-99-35
CI
v. )
) O P I N I O N
CHUCK F. PROKOSCH, )
) [No. 5834 - October 1, 2004]
Appellee. )
)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Palmer,
Beverly W. Cutler, Judge.
Appearances: David A. Golter, Golter &
Logsdon, P.C., Wasilla, for Appellant. No
brief filed by Appellee.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
EASTAUGH, Justice.
I. INTRODUCTION
I. This appeal is the third arising from a superior courts
initial custody order conditioning custody upon the relocation of
a parent. We decided in the first appeal that the superior court
cannot place restrictions on a parents ability to relocate, but
rather must make a custody determination in light of each parents
situation, taking into consideration all factors related to the
best interests of the child. We concluded in the second appeal
that the superior court erred on remand in failing to make a
custody determination based on an assumption that the mother
would relocate and in failing to make a finding whether
legitimate reasons motivated the mothers decision to relocate.
The mother now appeals the latest custody order, which awards
primary physical custody to the father assuming the mother
relocates out of Alaska. Because we conclude that it was error
to fail to consider pertinent consequences of the mothers assumed
relocation, we vacate the custody award and remand this matter
for further proceedings consistent with this opinion.
II. FACTS AND PROCEEDINGS
This case has come before us twice before. The
superior courts initial custody order found that each of Jeremiah
Ezekiel Prokoschs parents, Faith Moeller-Prokosch and Chuck
Prokosch, would be capable of exercising sole legal custody, but
gave primary physical custody to Faith based on her flexible
employment. The superior court also concluded, however, that
because Faith had indicated a desire to move to Florida, thus
necessarily separating Jeremiah from his father in Alaska, she
demonstrated an unwillingness to meet his emotional needs. It
therefore ordered that the parties share joint legal custody,
specified extensive visitation procedures, and ordered that Faith
not relocate Jeremiah to any place more than sixty-five miles
from Chuck.1
Faith appealed the superior courts order containing
this limitation on her relocation.2 We vacated the order and
remanded, holding that the superior court must consider all of
the AS 25.24.150(c) best interest factors in awarding custody if
one parent chooses to move from Alaska, and must also consider
whether legitimate reasons for the move exist.3
The superior court on remand modified the original
custody order by awarding sole legal custody to Chuck with
respect to where Jeremiah would attend school, physical custody
to Faith as long as she resided within a reasonable traveling
distance to Jeremiahs school in Alaska, and primary physical
custody to Chuck if Faith chose to live at an unreasonable
traveling distance to the school. Faith again appealed.
We again vacated the custody order and remanded for
further proceedings including an evidentiary hearing to consider
subsequent developments since the original trial. We reasoned
that the superior court failed to follow our instructions on
remand to make a finding as to whether legitimate reasons existed
for Faiths move and to apply the best interest analysis based on
the assumption that Faith would move to Florida.4
After our second remand, the superior court conducted
an evidentiary hearing and found that Faiths reasons for moving
to Florida were legitimate and were not intended to frustrate
Chucks visitation. The superior court also performed the best
interest analysis of factors listed in AS 25.24.150(c), and found
that (1) Jeremiahs needs were typical of those of any nine-year-
old boy growing up in the Mat-Su Valley; (2) both parents were
capable of meeting his needs; (3) due to Jeremiahs young age, no
preference was considered or presented; (4) strong love and
affection existed between him and each parent; (5) it was in
Jeremiahs best interests to remain in Southcentral Alaska to
maintain stability and continuity; (6) Chuck was more willing
than Faith to allow Jeremiah to have an open and loving frequent
relationship with the other parent; (7) there was no evidence of
domestic violence, child abuse, or neglect; (8) Chuck had cleaned
up his life with regard to his former problem with alcohol; and
(9) Jeremiah would be devastated if he had to move to Florida
away from his father. Based on these findings, the superior
court entered an order stating that, assuming Faith moves to
Florida, Chuck would gain primary physical custody.
After Faith moved for partial reconsideration to
request a custody ruling in the event she remained in Alaska, the
superior court ordered that as long as Faith remained in the Mat-
Su Valley, she would continue to have primary physical custody of
Jeremiah. Because she had no intention of leaving Alaska without
Jeremiah, Faith stipulated to entry of final judgment that
indicated the parties did not wish to further litigate the
visitation issue at the time. The superior court entered a final
decree, incorporating its previous orders and some elements of
its initial custody order.
Faith now appeals this decree.5
III. DISCUSSION
A. Standard of Review
Whether a lower court on remand has correctly applied
our mandate is a question of law we review de novo.6 We
determine questions of law in light of precedent, reason, and
policy.7
We set aside a trial courts determination of custody
only if the entire record demonstrates that the controlling
findings of fact are clearly erroneous or that the trial court
abused its discretion.8 A fact finding is clearly erroneous when
this court is left with a definite and firm conviction that the
trial court has made a mistake.9 An abuse of discretion has
occurred if the trial 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.10
B. The Superior Court Erred in Failing To Analyze
Jeremiahs Best Interests Based on the Assumption Faith
Would Move to Florida.
We first remanded this case for a determination whether
it would be in Jeremiahs best interests to be in the physical
custody of Faith or Chuck, based on the assumption that Faith
would move to Florida.11 Alaska Statute 25.24.150(c) requires the
court to consider these factors in determining custody in
accordance with the childs best interests:
(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 childs 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.
Faith challenges the superior courts findings with respect to
statutory factors (2), (5), (6), (7), and (9).
With respect to the fifth statutory factor, Faith
argues that the superior court focused too narrowly on geographic
stability in weighing this factor against her. We agree. The
stability factor requires the court to engage in a comprehensive
review of several aspects of continuity. As we explained in
Barrett v. Alguire:
The trial courts consideration of the
stability of the childrens environment in a
custody . . . 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 childrens school, the community of
friends and family, the cultural community,
and the childrens relationship with the non-
custodial parent. It also includes stability
of place.[12]
The stability factor also requires the court to view stability
and continuity both prospectively and retrospectively.13 We
specifically addressed in Meier v. Cloud how to apply this factor
in situations such as Jeremiahs, in which two parents share
custody and one subsequently decides to relocate to another
state:
Because the child will no longer be able to
spend equal time with each parent in these
situations, a court considering the childs
need for continuity and stability in this
context must examine not only the
desirability of maintaining geographical
continuity, but also the importance of
maximizing relational stability. A
continuity test centered entirely on the
childs geographical stability would always
favor placing the child with the non-moving
parent. Yet our decisions recognize that
courts may properly award primary custody to
the relocating parent when that parent offers
superior emotional stability. Thus, the
continuity and stability factor does not
preordain the result in such cases; instead,
it commands a comprehensive inquiry into each
parents respective ability to maintain stable
and satisfactory relations between themselves
and the child.[14]
Because Jeremiah has strong geographical ties to
Alaska, focusing only on the geographical consequences of Faiths
move to Florida would clearly favor granting custody to Chuck.15
We have noted, however, that [s]tability is often a function of
parental attitude and not of geography.16
The court-ordered notebook through which the parents
communicate shows that both parents provide Jeremiah with a
constant stream of activities such as reading, swimming, skating,
cooking, playing video games, spending time with friends, and
attending church. Faith has been Jeremiahs primary caretaker
since the divorce in 1999; he spends most if not all of the
school week with her. She closely monitors his daily activities
and has provided a stable environment for him. Chuck, however,
has also maintained a constant relationship with Jeremiah. As
noted by the superior court, he regularly exercised all of his
weekend visitation rights in exemplary fashion, even when he
lived in Anchorage while Faith and Jeremiah lived in Palmer.
As part of considering Jeremiahs best interests in
terms of relational stability, the superior court should have
fully considered the effect of his separation from the non-
custodial parent, assuming his mother moves to Florida. The
superior court did recognize that Jeremiah would be devastated if
he had to move to Florida away from Chuck, but did not discuss
the corresponding effect on Jeremiah if he had to stay in Alaska
after Faith moved to Florida.17 As shown by the testimony of both
Faith and Chuck, it is undisputed that Jeremiah would be
devastated by either custody choice: living in Alaska without his
mother or living in Florida without his father. This testimony
was consistent with the finding that Jeremiah is strongly bonded
to both parents.
We conclude that it was an abuse of discretion not to
consider the detriment to Jeremiah if he were separated from his
mother upon her move to Florida. The absence of any discussion
of this consequence raises some question whether the best
interests analysis was based on the assumption that Faith would
move to Florida, as we required in remanding.18 Performing the
best interests analysis based on Faiths assumed move requires
symmetric consideration of the consequences to Jeremiah both if
she leaves with him and if she leaves without him.
C. The Superior Court Did Not Err in Finding Each
Parent Desired and Was Equally Capable of Meeting
Jeremiahs Needs.
Faith also argues that the superior court incorrectly
determined under the second statutory factor that both parties
were equally adequate despite evidence of Chucks inferior
housing, his failure to make use of all of his mid-week
visitation privileges, his failure to pay regular child support,
and his minimal participation in Jeremiahs schooling and
counseling. We conclude that the superior court did not err in
finding that the parties offer different but comparable ways of
meeting Jeremiahs needs.
Chuck admittedly lives in a large two-bedroom trailer
with no running water and no central heat, but he heats his home
with a wood stove and keeps 100 gallons of water on hand for the
toilet and other household uses. Faith lives in a housing
project in Palmer. Regardless, both parents have housing
adequate to provide Jeremiah with basic necessities.
Chucks failure to exercise all of his Wednesday mid-
week visitation privileges is also insufficient to show that he
is less capable than Faith of meeting Jeremiahs needs. The
superior court found that he did avail himself of all the
weekends in exemplary fashion. Chuck also testified that
Wednesday visits were sometimes difficult due to his work and
that he had unsuccessfully attempted to exchange days with Faith.
Under these circumstances the superior court could properly find
that Chucks exemplary weekend visitation record outweighs his
imperfect Wednesday visitations.
With respect to Faiths allegations that Chuck did not
pay regular child support, Chuck testified that every time he
found employment, he made arrangements to make up the child
support he was unable to pay while unemployed. Chuck has also
provided Jeremiah with clothes, video games, toys, and a laptop
computer in addition to child support.
Faith, however, has been more active in Jeremiahs
counseling and education. Faith sought counseling for Jeremiah
after he displayed anger and had difficulty adjusting to the
divorce, and she continued his counseling beyond the year ordered
by the court. She also closely monitors Jeremiahs homework and
his academic progress. Chuck, on the other hand, apparently had
difficulty reaching Jeremiahs counselor but did manage to speak
to her once about him. Chuck made an effort to go to Jeremiahs
school to speak with his teacher and volunteer with the class but
upon returning to the school a second time was informed that
because of the divorce decree he would not be permitted to visit
Jeremiah during the school day. Faith testified that she is more
book smart, but Chuck testified that he and Jeremiah do artistic
activities and educational programs on the computer together.
Some of the ways in which Faith participates in
Jeremiahs life more than Chuck relate to her role as the primary
physical custodian. Because Jeremiah lives with her during the
school week, she would naturally be more involved in monitoring
his homework and taking him to counseling. Furthermore, it
appears that Faith has interfered to some extent with Chucks
ability to participate in Jeremiahs life. She does not inform
Chuck about Jeremiahs Boy Scout events and also has prevented
Chuck from participating in Jeremiahs church program by asking a
minister to tell him not to attend.
Because the evidence permits a finding that Faith and
Chuck respond to Jeremiahs needs and approach parenting in
different but equally adequate ways, it was not an abuse of
discretion for the superior court to find, as a whole, that both
parties equally desired and equally were able to meet his needs.
D. The Superior Court Did Not Err in Finding that Chuck
Was More Willing and Able To Allow Jeremiah an Open and
Loving Relationship with the Other Parent.
The superior court weighed the sixth statutory factor
in favor of Chuck, based on information presented at the hearing
and contained in the 1999 custody investigation report; in the
superior courts view, the information indicated that Faiths
inflexibility with respect to minor changes or short delays in
visitation failed to promote Chucks participation in Jeremiahs
life.
The evidence presented at the hearing supported an
inference that Faith shows extreme adherence to the initial
custody order with regard to any contact between Chuck and
Jeremiah. Under that order, each parent can make a ten-minute
phone call to Jeremiah no more than once every forty-eight hours
while he is in the custody of the other parent. Chuck testified
that in the three years since the divorce, Faith never allowed
him to talk to Jeremiah on the phone two days in a row, even with
respect to Chucks birthday or Fathers Day. According to him,
Faith refuses to let Jeremiah speak to Chuck longer than ten
minutes even though Chuck permits him to speak with Faith as long
as he wants. Chuck also testified that Faith refuses to
facilitate email communication between him and Jeremiah.
The evidence supports the trial courts finding that
Faith exhibited a lack of flexibility with visitation
arrangements, resulting in minor changes or short delays
concerning the time and location of visitation pick-up and drop
off [and] the provision of extra visitation . . . . For example,
she has not facilitated Chucks Wednesday visits. She refuses to
let Chuck trade days and has refused to allow Wednesday
visitation in the summertime. Chuck has allowed Jeremiah to be
with his mother on holidays that are technically Chucks
visitation days, but Faith has never reciprocated. Chuck
testified that Faith would not allow Jeremiah to take to her
house the laptop given by Chuck on which Jeremiah writes stories.
Similarly, Faith does not allow Jeremiah to wear the clothes from
his fathers house back to her house, forcing Chuck to maintain a
separate set of clothes, hats, gloves, and boots at his home.
Because of Faiths insistence that all items from Chuck stay at
Chucks place, all birthday and Christmas presents also remain at
the respective homes.
The evidence thus supports the superior courts finding
that Faith is very inflexible in her dealings with Chuck and the
child. The superior court therefore did not err in finding Chuck
to be more willing and able to allow Jeremiah to develop an open
and loving frequent relationship with his mother than vice-versa.
E. The Superior Court Did Not Err in Failing To Find
Evidence of Domestic Violence.
Faith also argues that following trial in December 1999
the superior court did find evidence that there was some domestic
violence by Chuck against Faith. She contends that the superior
court should have considered this fact to the extent the court
faulted Faith for the current relationship between the parties.
But because the superior court did not weigh this factor against
either party, there is no indication the factor did affect (or
should affect, as conceded by Faith) the custody decision. We
therefore conclude that the superior court did not err in failing
to find evidence of domestic violence.
IV. CONCLUSION
Because the superior court did not perform a complete
analysis of Jeremiahs best interests based on the assumption that
Faith would move to Florida, we VACATE the custody order and
REMAND for proceedings consistent with this opinion.
_______________________________
1 Moeller-Prokosch v. Prokosch (Moeller I), 27 P.3d 314,
316 (Alaska 2001).
2 Id.
3 Id. at 316-17.
4 Moeller-Prokosch v. Prokosch (Moeller II), 53 P.3d 152,
157 (Alaska 2002).
5 No attorney has appeared for Chuck, and Chuck has filed
no brief in this appeal.
6 Moeller II, 53 P.3d at 154.
7 Moeller I, 27 P.2d at 316 (citing McQuade v. McQuade,
901 P.2d 421, 423 n.3 (Alaska 1995)).
8 Hamilton v. Hamilton, 42 P.3d 1107, 1111 (Alaska 2002).
9 Id.; Fardig v. Fardig, 56 P.3d 9, 11 (Alaska 2002).
10 Hamilton, 42 P.3d at 1111.
11 Moeller II, 53 P.2d at 153.
12 Barrett v. Alguire, 35 P.3d 1, 9 (Alaska 2001).
13 Meier v. Cloud, 34 P.3d 1274, 1279 (Alaska 2001).
14 Id. (footnotes omitted) (quoting McQuade v. McQuade,
901 P.2d 421, 426 (Alaska 1995)).
15 Jeremiah has lived in Southcentral Alaska all ten years
of his life, attending the same school in the Mat-Su Valley since
elementary school. He has friends with whom he spends time when
he is in the custody of either parent, and he participates in a
local church program and the local Boy Scouts.
16 McQuade, 901 P.2d at 426 (quoting Craig v. McBride, 639
P.2d 303, 308 (Alaska 1982) (Rabinowitz, C.J., concurring)).
17 The superior court discussed the devastating impact of
being separated from his father as part of the ninth statutory
factor, but because it involves relational continuity, the impact
of separation is more properly considered as part of the
stability analysis under the fifth statutory factor.
18 At one point during the evidentiary hearing, the court
asked Faith:
[W]hy given how long thats been on hold
anyway, and given . . . that Jeremiah is . .
. a little boy . . . [who] loves his dad,
loves his mom, but who does get to see his
dad a lot, I mean, hes not a little boy who
doesnt have any dad relationship . . . why
cant you wait just a few more years so that
Jeremiah can spend his childhood with his dad
in his life, at least as much as he is in his
life, which isnt as much as youre in his
life, but a whole lot more than he would be
if you went to Florida? Why cant you wait
until hes an older I dont want to say all
teenagers do this, but once they hit the
teenage years and they dont really want mom
or dad in their life . . . why is it so
important to do this now as opposed to let
Jeremiah have at least a few more years with
his dad while hes still a little boy?
This line of questioning further suggests possible
preoccupation with the irrelevant question whether Faith should
be permitted to relocate, rather than the impact of her assumed
move.
