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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Yvonne S. v. Wesley H. (1/14/2011) sp-6533
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
YVONNE S., )
) Supreme Court No. S-13562
Appellant, )
) Superior Court No.
v. ) 3AN-95-01666 CI
)
WESLEY H., ) O P I N I O N
)
Appellee. ) No. 6533 - January 14, 2011
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Mark Rindner, Judge.
Appearances: Yvonne S., pro se, Anchorage, Appellant.
Wesley H., pro se, Anchorage, Appellee.
Before: Carpeneti, Chief Justice, Fabe, Winfree, Christen,
and Stowers, Justices.
CARPENETI, Chief Justice.
I. INTRODUCTION
A divorced mother appeals the denial without a hearing of her motion to
modify a two-year-old custody order. The parties' daughter, 16 at the time of the
hearing, strongly preferred the current arrangement in which her father has primary
physical custody. Because the mother's allegations, even if true, did not demonstrate a
change of circumstances warranting a modification of custody, we affirm the superior
court's decision.
----------------------- Page 2-----------------------
II. FACTS AND PROCEEDINGS
Yvonne and Wesley have one child, Allison,1 born September 22, 1993.
When they divorced in 1996, the court ordered joint legal custody of Allison and granted
Yvonne primary physical custody.2 The court granted Wesley regular visitation on
weekends and holidays.
In May 2008, when Allison was 14 years old, Wesley moved for primary
physical custody of Allison. Allison submitted an affidavit expressing a strong desire to
live with her father. Yvonne opposed the motion and the court held a hearing. Allison
testified that she wanted to live with her father because he was supportive, they shared
interests and communicated well, and he trusted her more than her mother did. In
addition, Allison testified that she experienced a lot of stress living with her mother. For
instance, Allison testified that she was hurt by her mother's excessive criticism of her
weight and appearance. Allison also testified that she had a difficult relationship with
her stepfather.
The court found that Allison was mature, made good decisions, had a
healthy self-image, did not use drugs or alcohol, did well in school, and had not had
trouble with the law. The court also found that the criticism Allison perceived from her
mother was problematic and that some conflicts existed between Allison and her
stepfather. The court found that Allison clearly wanted to live with her father, that she
had legitimate reasons for her preference, that she was not being unduly influenced by
either parent, and that she was of sufficient capacity and maturity to warrant
1 We use pseudonyms to protect the family's privacy.
2 In 2000, Wesley unsuccessfully moved for primary physical custody of
Allison. As part of those proceedings, Wesley unsuccessfully moved to recuse the judge.
Wesley appealed, and this court affirmed the superior court's decision to deny recusal.
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----------------------- Page 3-----------------------
consideration of her custody preference. The court also discussed each of the statutory
factors for determining a child's best interests.3 Weighing these factors, the court held
that Allison's preference, her age, and the problems at her mother's house constituted a
change in circumstances which warranted a change in custody. The court granted
Wesley primary physical custody, giving Yvonne regular visitation. The court noted that
Allison's preference was the "most significant factor" influencing its decision. Yvonne
did not appeal this decision.
On June 3, 2009, when Allison was nearly 16 years old, Yvonne moved to
for shared physical custody. Yvonne alleged several changed circumstances which she
asserted warranted the change, including that Allison's grades and health had
deteriorated under Wesley's care. Yvonne attached to her motion Allison's report cards
and medical records, as well as several pages of emails between herself and Wesley.
Wesley opposed the motion and Allison submitted an affidavit expressing her strong
desire to remain living with her father. It does not appear that Yvonne submitted a reply
to Wesley's opposition.
On June 22, 2009, the superior court denied Yvonne's motion to change
physical custody without a hearing, stating that Yvonne "has not demonstrated a
substantial change in circumstances." Yvonne appeals. Both Yvonne and Wesley
appeared pro se during the custody proceedings discussed above, and also appear pro se
before this court.4
3 See AS 25.24.150(c) (excerpted infra at note 12).
4 In July and August 2009, Yvonne and Wesley expressed disagreement to
this court about the proper scope of the record on appeal. On September 1, 2009, we
issued an order clarifying that the appeal is limited to Yvonne's contention that the trial
court erred in denying, without a hearing, her motion to modify custody. Thus, while the
(continued...)
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----------------------- Page 4-----------------------
III. LEGAL FRAMEWORK AND STANDARD OF REVIEW
The question before us is whether Yvonne's allegations, taken as true,
demonstrate a significant or substantial change in circumstances relative to the
circumstances that existed at the time of the prior custody order, and whether those
allegations, if true, would warrant a change in custody.5 If the answer to both questions
is yes, Yvonne is entitled to evidentiary proceedings and an opportunity to establish
whether, in light of the changed circumstances, "it is in the child's best interest to alter
the existing custodial arrangement."6 Whether a moving party has made a prima facie
4 (...continued)
most recent custody trial (the 2008 trial in which Wesley was awarded primary physical
custody) was relevant, several other proceedings that Yvonne sought to make part of the
record on appeal were irrelevant and would not be considered. These included the March
2007 trial resulting from Wesley's unsuccessful motion to modify custody and three
domestic violence proceedings dating back to 1994.
Because our order arose from Yvonne's motion to provide CDs instead of
written hearing transcripts, the order technically applies only to the hearings from these
proceedings. However, multiple documents from the irrelevant proceedings are still
included in Yvonne's excerpt and repeatedly cited to in her brief. Consistent with the
reasoning in our September 2009 order, we have disregarded this material in considering
this appeal.
5 Maxwell v. Maxwell, 37 P.3d 424, 425 (Alaska 2001) ("The superior court
may deny a hearing on a motion to modify custody if it considers the motion and finds
it plain that the facts alleged in the moving papers, even if established, would not warrant
a change in custody.") (internal citations omitted); Valentino v. Cote, 3 P.3d 337, 340
(Alaska 2000); see also J.L.P. v. V.L.A., 30 P.3d 590, 595 (Alaska 2001).
6 Iverson v. Griffith, 180 P.3d 943, 946 (Alaska 2008) (quotingMaxwell, 37
P.3d at 426); AS 25.20.110(a) ("An award of custody of a child . . . may be modified if
the court determines that a change in circumstances requires the modification of the
award and the modification is in the best interests of the child."); see also Maxwell, 37
P.3d at 426 ("The moving parent bears the burden of making a prima facie showing of
(continued...)
-4- 6533
----------------------- Page 5-----------------------
showing of changed circumstances warranting a hearing is a question of law that we
review de novo.7 We review allegations of multiple changed circumstances in the
aggregate to determine whether modification would be warranted if the allegations were
proven true at a hearing.8 We will affirm the denial of a motion to modify custody
without a hearing if, in our independent judgment, either (1) "the facts alleged in the
motion would not warrant a change in custody,"9 or (2) the "allegations of changed
circumstances are convincingly refuted by competent evidence"10 and the moving party
then fails to indicate the ability to "produce admissible evidence of specific facts
rebutting that evidence."11
In determining the best interests of a child for custody purposes, a court
should consider several factors, including the child's preference if the child is of
sufficient age and capacity to form a preference.12 In particular, "courts should place
6 (...continued)
a substantial change of circumstance as a threshold matter."); Valentino, 3 P.3d at 340
("[A] custody modification is valid if (1) the non-custodial parent establishes that a
change in circumstances has occurred; and (2) the modification is in the best interests of
the child.").
7 Barile v. Barile, 179 P.3d 944, 946 (Alaska 2008);Maxwell, 37 P.3d at 425.
8 Barile, 179 P.3d at 946.
9 Iverson, 180 P.3d at 946.
10 Id.
11 C.R.B. v. C.C., 959 P.2d 375, 382 (Alaska 1998), overruled on other
grounds by Evans v. McTaggart, 88 P.3d 1078, 1084-85 (Alaska 2004).
12 AS 25.24.150(c)(3). In addition, the court should consider:
(1) the physical, emotional, mental, religious, and social
(continued...)
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----------------------- Page 6-----------------------
weight upon an older child's preferences [because], while a young child's preferences
are often unreliable because he or she can be easily influenced by the behavior of his or
her parents, 'a relatively mature teenager's reasoned preference is not so lightly to be
disregarded.' "13
IV. DISCUSSION
The Superior Court Did Not Err In Denying Yvonne's Motion To Modify
Custody Without A Hearing.
12 (...continued)
needs of the child;
(2) the capability and desire of each parent to meet these
needs;
. . .
(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 . . .
(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.
13 Valentino v. Cote, 3 P.3d 337, 340-41 (Alaska 2000) (citing Veazey v.
Veazey, 560 P.2d 382, 390 n. 11 (Alaska 1977), overruled by statute on other grounds);
see also Maxwell v. Maxwell, 37 P.3d 424, 426 (Alaska 200) (affirming denial of custody
modification hearing where teenagers expressed strong preference to stay with custodial
parent and there were no signs of abuse or neglect).
-6- 6533
----------------------- Page 7-----------------------
Although Yvonne raises ten points on appeal, her position can be
summarized as follows: Yvonne argues that the superior court erred in denying her
motion for changed custody without a hearing because, in her view, her allegations show
a substantial change in circumstances which potentially warrants a change in custody.14
Yvonne alleges eight changed circumstances discussed below. Wesley responds that the
superior court correctly determined that Yvonne had not demonstrated a substantial
change in circumstances. Specifically, Wesley points out that Allison's preference was
a major factor in the court's 2008 decision awarding him primary physical custody, and
that Allison's preference has not changed.
As a preliminary matter, we note that Yvonne has included in the excerpt
and relied on in her brief a large amount of material that is outside the proper scope of
our review. The relevant inquiry here is whether Yvonne has demonstrated a change in
circumstances "relative to the facts and circumstances that existed at the time of the prior
custody order that [she] seeks to modify."15 Yvonne seeks to modify the custody order
issued in August 2008. Thus, for this appeal we will not consider material relating to
events before August 2008 other than for comparison purposes.16
14 In Yvonne's fourth through tenth points on appeal, she argues that the
superior court gave too much or too little weight to various factors in determining the
child's best interests. However, because the superior court denied Yvonne's motion on
the ground that she had not shown a substantial change in circumstances, the court did
not actually weigh the statutory factors or make a determination about Allison's best
interests. Thus, we understand Yvonne to be arguing that this court in its independent
judgment should conclude that the facts alleged in her motion potentially warrant a
change in custody.
15 J.L.P. v. V.L.A., 30 P.3d 590, 595 (Alaska 2001).
16 This decision tracks the reasoning in this court's September 2010 order
regarding the scope of the record on appeal. See supra note 4.
-7- 6533
----------------------- Page 8-----------------------
As noted above, we review allegations of multiple changed circumstances
in the aggregate.17 Therefore we will first discuss each of Yvonne's allegations and the
corresponding evidence, and then determined whether, in the aggregate, the allegations
merited a hearing in the superior court.
First, Yvonne alleges that Allison's health has deteriorated under her
father's care. Yvonne points to a January 2009 physician's report indicating that Allison
had a hormone imbalance causing irregular menses, probably as a result of weight gain,
and recommending that Allison lose 15 pounds. Yvonne alleges that Wesley does not
provide healthy food or exercise opportunities to allow Allison to reach this goal.18
Yvonne does acknowledge, however, that a May 2009 doctor's report showed that
Allison had lost some weight and was on the "right track."
Second, Yvonne allegesthat Allison lives largely unsupervised in one-half
of Wesley's duplex, allowing her to socialize excessively and irresponsibly. Yvonne's
assertions on this point are either unsupported (because Yvonne provides no record
support or cites to non-supportive material) or supported only by inadmissible evidence.19
17 See supra note 8 and accompanying text.
18 Wesley and Allison dispute this in their affidavits. Both state that they
exercise together. Wesley says they "eat well and have a good diet." Allison says her
mother's infrequent visits make her a poor judge of Allison's diet while at her father's.
Further, Allison's affidavit indicates that she and her mother have a difficult relationship
on the subject of exercise, which is unsurprising given the weight-related criticism
Allison experienced from her mother while they lived together.
19 For example, Yvonne supports her allegation that Allison "has parties at
'her' house and spends overnights [with] friends often at the expense of her grades" by
citing a few emails between herself and Wesley. Yvonne's emails are inadmissible
hearsay, and Wesley's statements, though potentially non-hearsay party admissions, do
not support Yvonne's allegations. See Alaska Evidence Rules 801(d)(2), 802.
(continued...)
-8- 6533
----------------------- Page 9-----------------------
Yvonne also asserts that Wesley has a history of objecting to or refusing to pay for
Allison's doctor visits, but she does not point to any admissible evidence.20 Rather, the
record shows that Wesley has attended at least one doctor's visit with Allison since
assuming custody. Although she has abandoned the claim on appeal, Yvonne did allege
in the superior court that Wesley prevented Allison from getting a flu shot. However,
Allison stated in her affidavit that she did not want a flu shot even though Wesley would
have permitted it. Yvonne provides no evidence refuting this.
Third, Yvonne alleges that Allison's grades in school deteriorated under her
father's care. Allison's report cards show that she had As and Bs in the year before she
went to live with Wesley and had a mixture of As, Bs, Cs, and Ds in the year after. On
the positive side, Allison's report cards show regular attendance, enrollment in several
honors classes, and consistent As in "Concert Orchestra." In his affidavit, Wesley said
he shared Yvonne's concerns and was making efforts to help Allison improve. Allison
19 (...continued)
Although Wesley and Allison do not explicitly deny Yvonne's allegation
that they live in different sides of a duplex, they disagree with Yvonne that Allison is
unsupervised. Wesley stated in his affidavit that he discusses homework with Allison
and fixes meals for her daily. Allison stated in her affidavit that her father once grounded
her and prevented her from attending parties after she received a bad grade. Yvonne has
not produced admissible evidence of specific facts rebutting Wesley and Allison's
affidavits.
Yvonne also alleges that Allison's living area is dirty and in disarray.
Because Yvonne did not make this allegation in the superior court, it is waived. See
Peterson v. Swarthout, 214 P.3d 332, 339 (Alaska 2009) (claims not raised below are
waived).
20 Yvonne also claims on appeal, without support, that Wesley let Allison dye
her hair and make inappropriate internet postings. She did not make these allegations
below. Accordingly, they too are waived. Peterson, 214 P.3d at 339.
-9- 6533
----------------------- Page 10-----------------------
stated that her father often helped her with her homework and that her grades were lower
because classes at her new school were more challenging.
Fourth, Yvonne alleges that Allison has a new interest in learning Russian
and that spending more time with her mother, a native speaker, would be beneficial.
Allison responded that she has not been able to learn Russian from her mother after 15
years.
Fifth, Yvonne alleges on appeal that Wesley has "manipulated" Allison and
therefore her custody preference should be given little weight. Yvonne did not make this
allegation below, so it is waived.21 Further, Yvonne made this allegation in the July 2008
custody trial and the superior court rejected it, finding that Allison's preference had not
been unduly influenced by her father.
Sixth, Yvonne alleges that Wesley has interfered with her relationship with
Allison. Yvonne did not make this allegation below; thus it is waived.22 Further, Yvonne
supports this allegation primarily by citing events that occurred before July 2008 and
therefore are irrelevant to this appeal.23
21 Id.
22 Id.
23 The only relevant events are those that occurred after August 2008 when
the prior custody order was issued, and before June 2009, when Yvonne brought this
appeal. See J.L.P. v. V.L.A., 30 P.3d 590, 595-96 (Alaska 2001) (relevant inquiry is
whether party has shown that change in circumstances occurred since prior custody
order).
The only recent development Yvonne now alleges is that Wesley disparages
her to Allison, thus harming the mother-daughter relationship. For support, she gives
two examples that are unsupported by the record and cites to additional unsupported
assertions from her December 2008 pleading in an ancillary proceeding relating to
visitation and child support. Affidavits from both Wesley and Allison in that case denied
(continued...)
-10- 6533
----------------------- Page 11-----------------------
Seventh, Yvonne alleges that her husband recently moved to Los Angeles
for work. Yvonne argues that because Allison's difficult relationship with her stepfather
was one basis for the superior court's prior custody decision, his recent move is a
substantial change in circumstances which warrants a modification in custody.
Eighth, Yvonne alleges that she has recently moved into an apartment in
Allison's school district. Yvonne did not make this allegation below, and therefore it is
waived.24 Further, Yvonne does not explain why her relocation warrants a change in
custody, and it does not appear that Yvonne's previous distance from Allison's school
district was a barrier to shared custody.25
Considering Yvonne's multiple allegations in the aggregate26 and accepting
them as true, we conclude that Yvonne has not demonstrated a substantial or significant
23 (...continued)
Yvonne's allegations.
24 See Peterson, 214 P.3d at 339 (claims not raised below are waived).
25 Yvonne makes two additional arguments which completely lack merit.
First, she argues that the superior court should have given more weight to a 2007 child
custody investigator's report. This report was done as part of a proceeding completed
before the custody order which Yvonne seeks to modify, and thus the report is largely
irrelevant now. See J.L.P., 30 P.3d at 595-96.
Second, Yvonne argues that the superior court should have considered
Wesley's history of domestic violence. However, Yvonne cites only material from
between 1993 and 2000, well before the date of the 2008 custody order. See id. The
superior court in the 2008 custody trial found that domestic violence was not an issue
and Yvonne does not cite any incidents after that time. In addition, Yvonne raised
neither of these issues below, so they are waived. See Peterson, 214 P.3d at 339.
26 Barile v. Barile, 179 P.3d 944, 946 (Alaska 2008).
-11- 6533
----------------------- Page 12-----------------------
change in circumstances which would potentially warrant a change in custody.27
Although Allison was diagnosed with a medical condition while under her father's care,
it is undisputed that she has obtained follow-up treatment and made progress in following
the doctor's recommendations while under her father's care. Many of Yvonne's other
allegations are relatively minor or are outside the range of our review.
Two of Yvonne's allegations do warrant closer consideration: that her
husband - whose presence was a partial basis for the prior custody order - is no longer
in Alaska, and that Allison's grades dropped significantly after the change in custody.
In particular, the marked drop in Allison's academic performance gives us pause, as a
parent's ability to provide for a child's educational needs can be an important factor to
consider in determining the child's best interests.28
If Allison were younger or did not express a strong preference, we might
conclude that a hearing was necessary given these changes. However, Allison turned 17
in September 2010 and she has expressed a strong preference to live with her father. In
2008, when she was 14, the superior court heard extensive testimony from Allison and
determined that she was mature, made good decisions, and had legitimate reasons for her
custody preference. Yvonne has not made any allegations (such as drug abuse, risky
behavior, or mental illness) that now call Allison's maturity into question. Moreover,
27 See Maxwell v. Maxwell, 37 P.3d 424, 425 (Alaska 2001) ("The superior
court may deny a hearing on a motion to modify custody if it considers the motion and
finds it plain that the facts alleged in the moving papers, even if established, would not
warrant a change in custody.") (internal citations omitted); J.L.P., 30 P.3d at 595;
Valentino v. Cote, 3 P.3d 337, 340 (Alaska 2000).
28 See Michele M. v. Richard R., 177 P.3d 830, 834-35 (Alaska 2008);
Williams v. Ross, Mem. Op. & J. No. 1361, 2006 WL 830611, at *3 (Alaska, Mar. 29,
2006) (considering parent's ability to provide for child's educational needs under
AS 25.24.150(c)(1)-(2)).
-12- 6533
----------------------- Page 13-----------------------
Wesley concedes that Allison's grades have declined but, as Allison explained, that the
work is more challenging at her new school, and Yvonne has not contested the factual
basis for this reasonable explanation. In light of this, and in light of this court's
29
precedent giving greater weight to the custody preferences of older children, we
conclude in our independent judgment that Yvonne's allegations, even if established as
true, do not demonstrate a significant or substantial change in custody that would warrant
a custody modification. Therefore, the superior court did not err in denying Yvonne a
hearing on her motion to modify custody.
V. CONCLUSION
For the foregoing reasons, we AFFIRM the superior court's decision.
29 See, e.g., Maxwell, 37 P.3d at 425; Valentino, 3 P.3d at 340-41.
-13- 6533
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