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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Melendrez v. Melendrez (09/15/2006) sp-6045
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
| VALERIE P. MELENDREZ, | ) |
| ) Supreme Court No. S- 12198 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 1KE-02-222 CI |
| ) | |
| MICHAEL A. MELENDREZ, | ) O P I N I O N |
| ) | |
| Appellee. | ) No. 6045 - September 15, 2006 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, First Judicial District,
Ketchikan, Trevor N. Stephens, Judge.
Appearances: Michael P. Heiser, Ketchikan,
for Appellant. Amanda M. Skiles, Ketchikan,
for Appellee.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
CARPENETI, Justice.
I. INTRODUCTION
In this custody case, a mother challenged a custody
modification that would result in the placement of all four of
her children with their father. Although initially the mother
had been granted custody of the children, she did not oppose the
fathers modification request placing the two older children with
him. However, she challenged the superior courts decision to
also move the two younger children to live with their father.
Because the mother failed to establish clear error or abuse of
discretion by the superior court, we affirm the lower courts
decision.
II. FACTS AND PROCEEDINGS
A. Facts
Valerie Melendrez and Dr. Michael Melendrez, Sr. had
four children during their marriage: Michael Jr. (born 1990),
Candace (born 1991), Gabriel (born 1997), and Audrey (born 1999).
The family lived in Craig from 1993 until February 2002, when
Michael Sr. and Valerie separated. Valerie relocated to
California with the children during the separation, and in 2003
the parties divorced. Michael Sr. and Valerie developed a
custody and visitation agreement, adopted by Superior Court Judge
Trevor N. Stephens, which granted Valerie primary physical
custody of the four children and Michael Sr. five weeks of
visitation each summer. According to the terms of the agreement,
the children lived with Valerie in California and spent their
summers with Michael Sr. in Craig.
On November 16, 2004 Judge Stephens received a
handwritten letter from Candace expressing her desire to live
with her father in Alaska. Valeries signature appears at the
bottom of the letter as evidence of her consent to the custody
modification. Two weeks later, however, Valerie submitted a
letter to the court expressing second thoughts about allowing
Candace to live with her father. Michael Sr. moved to modify
custody in order to become Candaces primary physical custodian.
A hearing was held in December 2004, and Judge Stephens denied
the motion to modify custody. Applying the statutory analysis
required in AS 25.20.110(a),1 the court found that, while there
had been a substantial change in circumstances, the requested
change was not in Candaces best interests.
In August 2005 Michael Sr. filed a letter with the
court expressing concern for the childrens well-being as the
result of an incident during which Valerie struck Michael Jr.,
causing him to bleed. A month later Michael Sr. notified the
court that Michael Jr. and Candace would be moving to Craig to
live with him. He also appeared to request primary physical
custody of Gabriel, stating that Gabriel wished to return to
Alaska to be with his older brother, sister, and his Dad.
Valerie did not object to the change in custody for Michael Jr.
and Candace, but she opposed granting Michael Sr. custody of
Gabriel. Based upon the documents filed by both parties, the
court awarded primary physical and legal custody of Michael Jr.
and Candace to the father and ordered an evidentiary hearing to
be held regarding custody of Gabriel. Michael Sr. then amended
his motion in October 2005 to seek custody of both Audrey and
Gabriel on the ground that it would be in the best interests of
all four children to be kept together. Valerie opposed the
motion to modify custody.
Judge Stephens granted custody of Audrey and Gabriel to
Michael Sr., relying heavily on the benefits of keeping the
children together. According to the court, divided custody would
substantially impair if not destroy their sibling relationships.
The court found that the negative impact on their sibling
relationships outweighs the possible detrimental impacts on
Gabriel and [Audrey] of moving from their mothers home and
returning to Craig and the possibility of the older [two]
siblings being bad influences on them.
Valerie appeals.
B. Proceedings
In awarding physical and legal custody of Gabriel and
Audrey to Michael Sr., Judge Stephens looked to AS 25.20.110(a)
and examined whether any substantial changes in circumstances had
occurred warranting a modification of custody and whether a
modification would be in the best interests of the children. The
court found that Michael Sr. demonstrated at least one
substantial change in circumstances affecting the childrens
welfare since the previous custody order was entered: the
transfer to Michael Sr. of physical custody of the older
siblings, Michael Jr. and Candace. In addition, the court found
that the reasons Michael Jr. and Candace returned to Alaska
(mainly, their altercations with Valerie), changes in Michael
Sr.s work schedule and location such that he is able to work from
home, and his participation in anger management and alcohol
treatment programs all constituted changes in circumstances since
the previous custody order was enacted.
The court then evaluated the best interests of Audrey
and Gabriel by considering and weighing the statutory best
interest factors set forth in AS 25.24.150(c)(1)-(8). The court
concluded that the statutory custody factors on balance slightly
favored Michael Sr. because he already had physical custody of
Michael Jr. and Candace. The court expressed its belief that the
importance of maintaining sibling ties outweighed the
consequences of moving Gabriel and Audrey from their mothers home
in California. Consequently, the court awarded Michael Sr. legal
and physical custody of the two younger children.
Valerie appeals, arguing that the superior court
erroneously determined that it would be in Gabriel and Audreys
best interests to be placed with their father. First, she argues
that the court gave undue weight to the desirability of keeping
the children together. To substantiate this claim she maintains
(1) that there is insufficient evidence demonstrating strong
bonds between the older and younger children, and that in fact
the bonds are probably fairly weak, and (2) that the older
children have been bad influences on Gabriel and Audrey, so that
the younger children would probably benefit from being separated
from their older siblings. Second, she contends that the
superior court failed to accord proper weight to the stability
and continuity that would be achieved by allowing Gabriel and
Audrey to remain with her. Valerie asks us to reverse the
superior courts modification of custody and to order that primary
custody of Gabriel and Audrey be returned to her; alternatively,
she asks us to reverse and remand for further findings on the
issue of sibling bonds.
III. STANDARD OF REVIEW
The trial court has broad discretion in deciding child
custody disputes. A trial courts determination of custody will
be set aside only if the entire record demonstrates that the
controlling findings of fact are clearly erroneous or that the
trial court has abused its discretion.2 A finding of fact is
clearly erroneous when this court is left with a definite and
firm conviction that the trial court has made a mistake.3 Abuse
of discretion is established if the trial court considered
improper factors in making custody determinations, failed to
consider statutorily mandated factors, or assigned
disproportionate weight to particular factors while ignoring
others.4
IV. DISCUSSION
In order to successfully modify a custody arrangement,
the parent requesting the change must prove two facts: (1) that
there has been a substantial change in circumstances affecting
the welfare of the children since the last custody order was
entered, and (2) that the change requested is in the best
interests of the children.5
A. A Substantial Change of Circumstances Has Been
Demonstrated.
The superior court held that Michael Sr. met his burden
of proving that a substantial change in circumstances justified a
modification of custody. The court cited three changes in
circumstance that occurred since the previous custody order was
entered. First, Michael Sr. obtained primary physical custody of
Michael Jr. and Candace.6 Second, Michael Sr. changed his work
schedule and location so that he could work half days out of his
home, allowing him to spend more time with his children. Third,
Michael Sr. participated in anger management and alcohol
treatment programs.7
Valerie does not dispute the courts findings of changes
in circumstances, and we find no abuse of discretion by the
court.
B. The Superior Court Did Not Abuse Its Discretion in
Determining that Placement of the Children with Their
Father Would Be in Their Best Interests.
The superior court determines the childrens best
interests by considering and weighing the statutory best
interests factors set forth in AS 25.24.150(c)(1)-(9). These
factors include:
(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 willingness and ability of each
parent to facilitate and encourage a close
and continuing relationship between the other
parent and the child, except that the court
may not consider this willingness and ability
if one parent shows that the other parent has
sexually assaulted or engaged in domestic
violence against the parent or a child, and
that a continuing relationship with the other
parent will endanger the health or safety of
either the parent or the child;
(7) any evidence of domestic violence, child
abuse, or child neglect in the proposed
custodial household or a history of violence
between the parents;
(8) evidence that substance abuse by either
parent or other members of the household
directly affects the emotional or physical
well-being of the child;
(9) other factors that the court considers
pertinent.
We have held that the superior court need not address
each factor individually, but that it must provide a clear
indication of the factors it considered important in exercising
its discretion.8 Here the superior court provided a brief
analysis of each factor. The court acknowledged that both
parents desired to and were capable of meeting the physical,
emotional, mental, religious, and social needs of the children;
both parents had loving and affectionate relationships with the
children; both parents could provide stable homes and would face
similar challenges as single parents of four children; and
neither parent was unfit on the basis of violence or substance
abuse. Nonetheless the court concluded that on balance the
statutory factors slightly favor Michael Sr.:
The primary reason [that the statutory
factors favor Michael Sr.] is his having
custody of Candace and Michael. Gabriel and
[Audrey] would rarely see Candace and Michael
if divided custody continues. This would
substantially impair if not destroy their
sibling relationships. That immediate and
likely concern outweighs the possible
detrimental impacts on Gabriel and [Audrey]
of moving from their mothers home and
returning to Craig and the possibility of the
older [two] siblings being bad influences on
them.
Because the court found that sibling relationships
tipped the balance in favor of Michael Sr., it modified custody
to award him physical custody of all four children.
1. The superior court did not err by emphasizing the
desirability of keeping the siblings together.
Valerie first contends that the superior court erred by
placing too much emphasis on the desirability of keeping all four
children together. In considering the custody placement of
siblings, we have adopted a flexible, case-determinative
approach. The question of whether or not it is necessary to
separate children must depend upon the facts and circumstances of
each particular case.9 While we have often embraced the
proposition that it is desirable to not separate siblings,10 our
concern for maintaining sibling relationships has not been
transformed into a rigid rule to govern all situations.11 Rather,
we accord superior court judges the necessary discretion to best
respond to the myriad of factual settings which will invariably
arise in custody matters, at all times cognizant that it is the
best interests of the child which is the paramount consideration.12
Valerie challenges the courts factual finding of a
close relationship among the children. She maintains that
Michael Sr. failed to produce sufficient evidence of strong
sibling relationships among the four children. Yet she concedes
that Michael Sr. introduced evidence that Michael Jr. has a close
relationship with Audrey and Gabriel, that he misses them, and he
would like to see them again. She also acknowledges that Michael
Sr. testified that Gabriel was in tears after the first custody
modification and told his father that he wanted to come and be
with his big brother.
Valerie additionally maintains that the evidence
suggests that the older children were not strongly bonded with
their younger siblings. She offers no support for this argument,
however, other than her belief that [i]f sibling bonds were
strong, Michael [] Jr. and Candace would not have left their
younger siblings and move[d] to Alaska. But this argument
neglects to consider the reasons that the older children sought
to escape their mothers custody and the relative powerlessness of
the younger children; in short, it fails to prove that the
relationship among the siblings was weak.
Valerie suggests that strong bonds between the older
and younger children are not likely because of the gap in their
ages. This point is speculative at best. Valerie introduces no
evidence to support her conclusion, other than her own belief
that children of the same age group have more in common with each
other than . . . children of another age group, and that [i]t is
questionable how much time teenagers would want to spend with
younger children. We cannot agree that age differences
necessarily preclude a close sibling bond, particularly given the
specific evidence that Michael Jr. wanted to spend time with his
younger siblings and that Gabriel wished to be with his older
siblings.
Valerie asserts that Gabriel and Audrey would benefit
from being separated from Michael Jr. and Candace because the
older children had a bad attitude . . . [which] caused the two
younger children to act out and not listen. The superior court
noted, however, that [t]he record reflects . . . that Michaels
attitude and conduct has improved markedly since he has resided
with Dr. Melendrez and the record does not reflect that Dr.
Melendrez has had any disciplinary problems with Candace. The
record shows that the two older children had a difficult
relationship with their mother, not with their father. Valerie
offers no evidence to prove that the courts findings in this
regard are clearly erroneous.
Finally, Valerie suggests that the superior court
should have waited to see how Candace and Michael Jr. adjusted to
life in Craig before modifying custody for Gabriel and Audrey.
She argues that it is conceivable that Candace or Michael Jr. may
choose to return to California and their friends, school, and
extended family. She also suggests that if Michael Jr. attends
college, the children will be together for only a short period of
time. She states, The court should have considered that this
likely reality weighed against severing the young children from
their established household with their mother. While these
arguments may be persuasive to some degree, she has not
demonstrated that the court failed to consider them, or that the
court abused its discretion in its final ruling.
The superior court weighed the value of sibling
relationships against other relevant factors in its discussion of
AS 25.24.150(c)(1)-(2) (the desire and capability of each parent
to meet the physical, emotional, mental, religious, and social
needs of the children). The court found that, while Valerie was
marginally better able to meet Audrey and Gabriels social needs
in the sense that their current friends, school, and their
extended family are where she resides, Audrey and Gabriel had
resided in that location only for three years. Outweighing that
factor, the court found, was that Michael Sr. was better able to
meet the childrens emotional needs because he has custody of the
older brother and sister. The superior court noted, The record
reflects that Gabriel and Audrey have a close relationship with
Michael and at least a normal sibling relationship with Candace.
While Valerie clearly disagrees with the courts conclusion about
the value of maintaining strong relationships among Michael Jr.,
Candace, Audrey, and Gabriel, she has not demonstrated that the
courts factual findings were clearly erroneous, or that the court
abused its discretion by considering sibling bonds in making its
custody determination.
2. The court did not fail to accord proper weight to
continuity and stability.
Valerie argues that the superior court erred in
emphasizing sibling bonds over continuity and stability. She
claims that the court did not adequately consider the importance
of a continuous and stable home environment, which would be
interrupted if the younger children were removed from their
primary care-giver, as well as their established friends, school,
home, and extended family. In support of this argument, she
observes that Gabriel and Audrey were too young when they left
Craig to have any memory of or attachment to the Craig home.
Alaska Statute 25.24.150(c)(5) requires the superior
court to consider the length of time the child has lived in a
stable, satisfactory environment and the desirability of
maintaining continuity in determining the childs best interests.
We have defined stability as often a function of parental
attitude and not of geography.13 The superior court may properly
broaden its consideration of the issue of stability to encompass
the childrens more general needs for stability in their overall
living environment, and it may evaluate the childrens needs, not
just in relation to each parent, but in relation to the totality
of the circumstances they were likely to encounter in their
respective parents homes.14
The superior court in the present case acknowledged
that Valerie provided a stable and satisfactory environment.
The court noted that Gabriel and Audrey had lived in California
with their mother for three years, and if custody were not
modified they would be able to continue to attend the same
school, have the same friends, and see their extended family.
Yet, the current custody split would preclude them from seeing
their older brother and sister, with whom they had lived their
entire lives, for any significant period of time. The court
admitted that this situation presents a close question. It
concluded that the importance of the sibling relationships
prevailed over other considerations. Valerie has not
demonstrated that this conclusion represented an abuse of
discretion.
Moreover, in McQuade we held that the superior court
may properly consider sibling relationships as an essential
component of maintaining the emotional continuity and stability
of the childs home environment.15 In that case we concluded that
the superior court did not abuse its discretion when, in
considering stability and continuity, it chose to emphasize
emotional continuity over geographical continuity.16
The McQuade analysis is applicable here. The superior
court apparently considered the relationships among the children
to be an essential component of emotional stability for Audrey
and Gabriel. It appropriately balanced multiple factors in
considering the best interests of the children, and it determined
that the need for continuity of sibling relationships outweighed
other considerations. Valerie has not demonstrated that the
superior court abused its discretion in this regard.
V. CONCLUSION
Because Valerie failed to prove that the superior
courts findings of fact were clearly erroneous, or that the court
abused its discretion in making the custody modification, we
AFFIRM the superior courts decision.
_______________________________
1 AS 25.20.110(a) states: An award of custody of a child
. . . may be modified if the court determines that a change in
circumstances requires modification of the award and the
modification is in the best interests of the child.
2 Chesser-Witmer v. Chesser, 117 P.3d 711, 715 (Alaska
2005) (quoting Hamilton v. Hamilton, 42 P.3d 1107, 1111 (Alaska
2002)).
3 Id.
4 Id.
5 AS 25.20.110(a); Nichols v. Mandelin, 790 P.2d 1367,
1371 (Alaska 1990).
6 Valerie concedes that she did not oppose Michael Jr.
and Candace going to live with their father. In a letter to the
court she explained that, after an incident with Michael Jr., she
decided to have their father share in the responsibilities of
parenthood. He had . . . been recruiting for custody of Michael
Jr. and Candace from the beginning of the separation. . . . Since
the older children were not listening to me thats when I decided
to have them live with their father in Alaska.
7 In the courts initial order of August 2002 in which it
awarded custody to Valerie, the court found that Michael Sr. had
anger, impatience, and alcohol problems that adversely impact his
abilities to meet the childrens emotional needs.
8 Chesser-Witmer, 117 P.3d at 718 (quoting Smith v.
Weekley, 73 P.3d 1219, 1225 (Alaska 2003)).
9 Nichols v. Nichols, 516 P.2d 732, 736 (Alaska 1973).
10 Craig v. McBride, 639 P.2d 303, 306 (Alaska 1982)
(citing Nichols, 516 P.2d at 736; Rhodes v. Rhodes, 370 P.2d 902,
903 (Alaska 1962)).
11 Craig, 639 P.2d at 306.
12 Id.
13 McQuade v. McQuade, 901 P.2d 421, 426 (Alaska 1995)
(quoting Craig, 639 P.2d at 308 (Rabinowitz, C.J., concurring)).
14 McQuade, 901 P.2d at 426 (internal citations omitted).
See also Evans v. Evans, 869 P.2d 478, 482 (Alaska 1994).
15 901 P.2d at 426.
16 Id.
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