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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Havel v. Havel (9/18/2009) sp-6413
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
| JOSHUA HAVEL, | ) |
| ) Supreme Court No. S- 13075 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 3AN-06-6473 CI |
| ) | |
| EPPIE HAVEL n/k/a HOGAN, | ) O P I N I O N |
| ) | |
| Appellee. | ) No. 6413 - September 18, 2009 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Sen K. Tan, Judge.
Appearances: Carl D. Cook, Law Office of Carl
D. Cook, P.C., Anchorage, for Appellant.
Cris W. Rogers, Law Office of Cris W. Rogers,
Anchorage, for Appellee.
Before: Fabe, Chief Justice, Eastaugh,
Carpeneti, Winfree, and Christen Justices.
CARPENETI, Justice.
I. INTRODUCTION
Divorced parents originally agreed to joint physical
custody split fifty-fifty of their son and to negotiate each
months schedule based on the parties work schedules. The mother
later moved to set a specific schedule, on the grounds that
communication was deteriorating, and that inconsistency in
scheduling and occasional long separations from each parent were
not in their sons best interest. The superior court set a
schedule that resulted in a permanent change in the amount of
time each parent would spend with the child. The father appeals,
arguing that it was error to set a specific schedule because no
change in circumstances occurred, and that the superior court
erred in setting a schedule that significantly reduced his time
with the child. We conclude that no change in circumstances was
required to set a schedule because it is not a modification to
set a schedule where the parties did not previously have any
schedule. We also conclude that it was not error to find that
setting a specific schedule was in the childs best interest.
However, because the change in the agreed-to division of time
with the child amounted to a modification of custody, we reverse
the superior courts order and remand for further proceedings to
set a schedule consistent with the parties agreement to split
custody fifty-fifty.
II. FACTS AND PROCEEDINGS
A. Facts
Eppie Havel (n/k/a Hogan) and Joshua Havel are parents
to a son, born in 1999. Eppie and Joshua divorced in April 2006
and since then have maintained joint legal and physical custody
of their son. Until entry of the court order setting a specific
schedule that is the subject of this appeal, the parties
attempted to set each months custody schedule via e-mail based on
their work schedules, in accordance with their separation
agreement. Eppie is employed as an independent contractor for
British Petroleum with a thirty-two hour per week schedule, and
with flexibility in when she works. Joshua is a flight engineer
for Lynden Air Cargo whose monthly schedule is determined through
a bid packet system. This means that he bids for his desired
schedule each month, but because the system is based on seniority
and he has low seniority, he does not always get his desired
schedule.
In January 2007 and August 2007 the parties experienced
substantial difficulty working out a suitable schedule, and
returned to court as a result. Over the course of time, Eppie
became very stressed by communication needed each month to set
the schedule for the following month and became convinced that
she and her son would be better off with a set schedule to create
a sense of stability and expectability.
B. Proceedings
The superior court incorporated the parties custody
agreement into its divorce order in April 2006. The physical
custody and custody schedule provision provided that:
The parties shall be awarded equal (50/50),
shared physical custody of their son. Each
months custody schedule shall be worked out
between the parties by the 15th day of the
preceding month, based upon the parties work
schedules. Both parties recognize and
acknowledge that both of their respective
work schedules require flexibility in
exercising custody of their child, and shall
work together with this understanding.
In January 2007 Joshua brought a motion to enforce the
custody agreement to allow him to have his son February 1-15,
2007. Superior Court Judge Sen K. Tan denied the motion with
respect to the request for specific dates, noting that there was
no mechanism in the parties agreement for resolving physical
custody issues when the parties were unable to reach agreement.
The superior court interpreted the agreement to require equal
custody over the course of time, but not in a given month. The
court ordered that the parties meet together with attorneys to
work out a February schedule, which they did.
In September 2007 Eppie filed a motion for a specific
schedule. She stated that she was not asking the court to modify
custody, but indicated that the agreement to negotiate a schedule
each month had become unworkable because (1) the schedule usually
was built only around Joshuas schedule; (2) he was increasingly
unwilling to accept any schedule that was not built around his
schedule, regardless of the resulting time the child would be
separate from one parent, and as a result the parties ability to
work together and their communications were deteriorating; and
(3) the child was showing signs of stress, and it would be in his
best interest to have some routine and structure in the schedule.
The dispute went to a hearing before Superior Court
Master Jonathon Lack, who found that the agreement required a
high ability of the parties to communicate in a meaningful and
productive manner without conflict, that the arrangement was
causing stress to Eppie and may be problematic for the child, and
that there had been a breakdown in communication constituting a
change in circumstances. The master found that, in spite of the
order, the child was doing well, but that the stress placed on
Eppie and the arrangement, overall, had a substantial probability
of negatively affecting the boy as he grew older. Accordingly,
the master recommended a new schedule that gives Eppie custody
from the beginning of each month through the third Friday of each
month, and Joshua custody from the third Friday through the last
day of the month. The superior court approved the masters
recommendation. Joshua moved for reconsideration, pointing out
that the new schedule would lead to a significant reduction in
his custodial time. The superior court denied reconsideration.
Joshua appeals.
III. STANDARD OF REVIEW
I. We review a trial courts decision to establish a
custody schedule for abuse of discretion.1 We reverse a trial
courts order to modify custody only if the record shows an abuse
of discretion or if controlling factual findings are clearly
erroneous.2 Abuse of discretion may occur when the trial court
considers improper factors, fails to consider statutorily
mandated factors, or gives too much weight to some factors.3 A
factual finding is clearly erroneous if, after reviewing the
record as a whole, we are left with a definite and firm
conviction that a mistake has been made.4
IV. DISCUSSION
Joshua argues that the trial court erred because it
modified custody although the evidence did not support a finding
of substantial change in circumstances. We analyze two different
results of the trial courts order to evaluate whether a
modification requiring a showing of a change in circumstances
occurred. First, we review the action of setting a schedule.
Next, we review the specific schedule the court set to determine
whether it results in a modification of the custody arrangement.
By custody arrangement, we mean the overall percentage of time
each parent has custody of the child.5
A. It Was Not an Abuse of Discretion To Set a Specific Custody
Schedule.
A. Joshua argues that, in setting out a specific schedule, the
superior court impermissibly modified the custody arrangement.
He argues that this was error because there was no change in
circumstances that justified it. Eppie responds that the motion
to set a schedule did not seek modification of custody or
visitation triggering the application of AS 25.20.110, the
statute governing changes of custody or visitation, and the case
law interpreting that statute.6 In Siekawitch v. Siekawitch,7 we
analyzed a situation in which the parties agreed in their
petition for dissolution to amicably decide in the future on
reasonable visitation times.8 In that case, the father was
granted physical custody, but we noted that had the dissolution
form reflected an agreement by the parties to joint physical
custody, their dispute would merely be over establishing
visitation rather than modifying custody. In such a case, no
change of circumstances would be necessary.9
Here, the parties original provision for a schedule is
quite similar to the provision at issue in Siekawitch in that the
parties agreed to agree on a schedule in the future. In essence,
the parties agreement to agree each month, based on what is
convenient for their work schedules, is not meaningfully
different than the Siekawitchs agreement to amicably decide in
the future. We therefore conclude that the parties did not have a
schedule and that setting a schedule was not a modification. Had
the schedule conformed to the parties plan for a fifty-fifty
split in custody, it would not require a showing of changed
circumstances.
B. The Superior Court Did Not Abuse Its Discretion in
Establishing a Specific Schedule.
Joshua challenges the superior courts decision to
impose a specific visitation schedule rather than leaving the
parties to work out, on a monthly basis, the schedule for the
following month. But our law is clear that, when parents who
have obtained a flexible order cannot agree on the schedule in
practice, it is always appropriate for the court to establish a
fixed schedule.10 The concept of the parents agreeing to agree
on a monthly basis is an attractive one. And, where they can
actually negotiate a flexible schedule on a regular basis, it is
often best for all concerned. But where they prove in practice
unable to agree on a continuing basis on the following months
actual schedule, as happened here, the trial court has the
authority to establish a fixed schedule.
Joshua does not address this issue directly. Rather,
he argues that the evidence clearly established that the child
did very well under the original arrangement and that it was
improper to conclude, without evidence, that Eppies frustration
with the agreement would adversely impact the child in the
future. Because he believes setting a specific schedule effected
a modification, he also urges us to apply the rule in Long v.
Long11 that any problems the parties experienced in their
communications could justify altering custody only if they were
found to have resulted in an extreme adverse impact12 on the
child. Eppie correctly responds that this rule that extreme
adverse impact on the children must be shown to find that
hostility is a change in circumstances does not apply here. She
argues that since unlike in Long13 this is not a modification in
the parties joint physical custody arrangement, no such finding
was necessary. She also argues that the trial courts finding
that an irregular schedule with long periods of time away from
each parent cannot be good for their child was correct and should
not be disturbed.14
The evidence demonstrated that the parties were unable
to agree here. They only communicated via e-mail because their
ability to speak directly to each other had deteriorated. The
parties ability to communicate effectively had so deteriorated
that twice within an eight-month period they had resorted to the
court to resolve their disputes. And even when they did manage
to set a schedule for the following month, Eppie testified that
often their conversations were stressful and frequently did not
result in a schedule that was best for the child, since sometimes
he had to spend three weeks or even a month away from one of his
parents. Thus, as noted above, because the parents were unable
to agree on the schedule, the court as always had the authority
to establish a specific schedule.
C. It Was an Abuse of Discretion To Adopt a Sixty-Forty Custody
Schedule Where the Parties Continued To Agree that Fifty-Fifty
Custody Was in the Childs Best Interests.
A. Joshua argues that the current schedule provides him
substantially unequal time with his son. As a result, he argues
the masters order modified the parties original custody
agreement. Eppie responds that the arrangement for physical
custody has not been altered because the new set schedule best
manifests the parties[] agreement to share 50/50 physical custody
in light of the parties work schedules and other evidence.
Although the masters report to the superior court noted that the
new schedule resulted in Eppie having fifty-six percent custody
and Joshua having forty-four percent for the remainder of 2008,
the master did not calculate the long term effect on each parents
portion of time with the child. In fact, the custody split for
2009 would result in a sixty-forty split.15 The superior court
did not explain whether, or why, it was infeasible to divide time
with the child more equally. It appears that the master found
that Joshua could either work the first half of the month or work
a morning schedule, so the schedule set by the master does not
explain the need for this length of separation. The master did
note that both parents indicated a preference to limit midweek
transfers, but this is not a justification for such a large
change in custody of the child from the equal sharing of custody
that the parties bargained for.16
The court made no explicit finding that it was in the
childs best interest to reduce his time with his father by so
much, including several separations of almost three weeks.17 The
court did not explain why providing Joshua with only the third
Friday through the end of the month was in the childs best
interest. The court could have structured a virtually fifty-
fifty division by choosing any five months during the year and
providing, for those months, that the transfer would take place
on the second, rather than the third, Friday of that month. Even
accepting that the parents expressed desire to avoid midweek
transfers is in the childs best interest, we conclude that it was
an abuse of discretion not to consider whether another schedule
might better meet this goal while also preserving his equal time
with both parents.
The master also explained that the schedule was
intended to account for Joshuas work schedule. The evidence
regarding Joshuas work schedule does not clearly support the
conclusion that the significant deviation from a fifty-fifty
split was necessary. Joshuas schedule each month is set by a
bidding process based on seniority. The master found that [a]
review of the fathers line bid schedule leads the court to
believe he can bid and hold a line which would have him flying
the first part of the month, or in the alternative, flying
instate where he would be home every evening. At the
hearing, Joshua testified regarding the process of bidding for
schedules. He said that it begins when the crew scheduler e-
mails a bid packet with a memo explaining flight schedules and
plans for the following month. When Joshua was asked if he
typically got his first or second choice schedule, he said he
needed to explain some quirks and stated, apparently, that crew
members who live in Alaska generally get in-state assignments:
[W]e have several of our crewmembers, a lot
live in Anchorage and in Alaska and a lot of
them live in the Lower 48 and they dont they
dont allow the guys in the Lower 48 to bid
Anchorage lines for airfare just for as a
cost-saving function when they have guys in
state that theyve hired. . . . So because of
that I typically get I dont I you know, I
never really get my first choice but I in
2007 . . . for 2007 anyways, I managed to
stay in state flying in one form or another,
whether itd be ad hoc, a.m.s or p.m.s or
reserve but thats not to say that it will be
that this month or next month.
He testified that Lynden had no week-on, week-off
schedules. At the end of the hearing, the court said, [a]s I
understand it based on your seniority, essentially, the two
options that well the three options that youre going to get on
flying are either going to be an a.m./p.m. schedule, youre on
five, off five, or some type of reserve schedule where youre off
two weeks and on two weeks. Joshua said the trend had been
toward two on/two off but that he could not be certain that would
continue. Although the nature of the a.m./p.m. and reserve day
schedules are not explained, it appears that the master concluded
that Joshuas schedule was generally an in-state schedule, and
that he would usually get a schedule where he either worked only
mornings or worked two weeks on/two weeks off if he bid for it
consistently, even if he did not always get his first choice.
These findings provide no basis for setting a schedule that
resulted in a change to a sixty-forty division of custody.
V. CONCLUSION
We AFFIRM the decision to set a schedule, but we
conclude that it was error to set the specific schedule that the
court did, because the schedule modified the parents custody
arrangement for an equal division of time with the child. We
therefore REMAND for further proceedings consistent with this
opinion.
_______________________________
1 Cusack v. Cusack, 202 P.3d 1156, 1162 (Alaska 2009);
Siekawitch v. Siekawitch, 956 P.2d 447, 451 n.7 (Alaska 1998).
2 Long v. Long, 816 P.2d 145, 150 (Alaska 1991) (quoting
McClain v. McClain, 716 P.2d 381, 384 (Alaska 1986)).
3 Id. (citing S.N.E. v. R.L.B., 699 P.2d 875, 878 (Alaska
1985)).
4 Jenkins v. Handel, 10 P.3d 586, 589 (Alaska 2000).
5 See, e.g., Siekawitch, 956 P.2d at 450 n.6.
6 As 25.20.110 provides in relevant part
(a) 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. If a parent
opposes the modification of the award . . .
and the modification is granted, the court
shall enter on the record its reason for the
modification.
Both before and after the adoption of the statute, we have
required that the moving parent demonstrate a substantial change
in circumstances for a modification of custody. See Jenkins, 10
P.3d at 589; Garding v. Garding, 767 P.2d 183, 185 (Alaska 1989)
(holding that the change under the statute must be significant or
substantial). However, if the order modifies visitation only,
but not custody, the change need not rise to the level sufficient
to warrant a change in custody. Acevedo v. Liberty, 956 P.2d 455,
457 (Alaska 1998) (quoting Hermosillo v. Hermosillo, 797 P.2d
1206, 1209 (Alaska 1990)).
7 956 P.2d 447 (Alaska 1998).
8 Id. at 451.
9 Id. at 451 n.7.
10 See id. at 451 (holding that inability of parties to
agree on visitation schedule warranted superior courts
intervention).
11 816 P.2d 145 (Alaska 1991).
12 Id. at 152.
13 Long concerned a very significant modification from
sole custody by one parent to sole custody by the other parent.
Id. at 148.
14 In this regard, the parties submitted extensive, and
conflicting, evidence about the effect on their son of the
parents disputes over the schedule. Eppie filed affidavits in
the superior court claiming that the boy was experiencing
symptoms of stress such as migraine headaches and increased
colds. Joshua countered that his medical records showed no signs
of these ailments. Eppie did not present additional evidence
concerning the boys medical problems or stress at the hearing.
Instead, her testimony about his welfare primarily concerned his
interests in seeing each parent regularly and without long,
unpredictable separations, testifying that he became upset during
long periods away and did better with transitions when the
parties had a week-on/week-off arrangement. Joshua responded
with extensive testimony from witnesses that the boy was doing
very well. The masters report did not make findings regarding
these claims, rather finding that although the child was doing
well, he was doing well despite the current custody and
visitation order. He concluded that the arrangement had a
substantial probability of negatively affecting the boy as he
grew older.
15 For 2009, under the new schedule, Eppie would have 217
days of visitation 59.5 percent of the year. We treat the new
schedule as establishing a sixty-forty custody split between the
parties.
16 While sixty percent custody is not primary custody, it
is substantially more than fifty-fifty. We have never held that
joint custody requires a fifty-fifty sharing of time, but here
the parties clearly stated in their agreement that the division
of custody would be fifty-fifty.
17 For example, in August 2009, the schedule would result
in twenty days separation. In March, April, and November 2009,
the schedule would result in nineteen days separation. See also
supra note 15, calculating percentages of time.
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