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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Bagby v. Bagby (5/13/2011) sp-6559
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, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
LEOTA BAGBY, )
) Supreme Court No. S-13785
Appellant, )
) Superior Court No. 1SI-07-00072 CI
v. )
) O P I N I O N
BRYAN BAGBY, )
) No. 6559 - May 13, 2011
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, First
Judicial District, Sitka, David V. George, Judge.
Appearances: Justin R. Eschbacher, Law Offices of G. R.
Eschbacher, Anchorage, for Appellant. Bryan Bagby, pro se,
Plymouth, California, Appellee.
Before: Carpeneti, Chief Justice, Fabe, Winfree, Christen,
and Stowers, Justices.
CHRISTEN, Justice.
I. INTRODUCTION
Bryan and Leota Bagby were married in 1998 and divorced in 2008. They
are the parents of one daughter. Prior to separation, the parties resided in Sitka but Leota
moved to Anchorage soon after Bryan filed a complaint for divorce. After a bench trial,
Bryan was awarded primary physical custody of the parties' daughter during the school
year and Leota was awarded visitation during the summer and on alternating holidays.
Bryan moved to Arizona after the custody trial. Leota filed a motion to modify custody,
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but the superior court denied the motion without holding a hearing. The superior court
reasoned that Bryan's move to Arizona did not constitute a substantial change in
circumstances because the original custody order contemplated that Leota's visitation
would require long-distance travel between Sitka and Anchorage. Leota appeals.
Because we have consistently held that an out-of-state move is a substantial change in
circumstances as a matter of law, we reverse the superior court's order and remand for
a hearing on Leota's motion to modify custody.
II. FACTS AND PROCEEDINGS
Bryan Bagby and Leota Bagby were married on September 4, 1998 and are
the parents of one daughter, Natalie.1 In April 2007, Bryan filed for divorce and Leota
moved from Sitka to Anchorage. The parties resolved some of their custody issues
through a settlement agreement and others were resolved at a trial held October 17 and
19, 2007. The superior court determined that it was in Natalie's best interests for the
parties to share legal custody but for Bryan to have physical custody during the school
year. Leota was awarded visitation during the summer and on alternating holidays. The
parties were ordered to equally share the cost of flights between Sitka and Anchorage to
facilitate Leota's two visitation periods - summer and one holiday each year. Leota
was also allowed limited additional holiday visitation at her own expense.2
1 A pseudonym is used to protect the identity of the parties' child.
2 Under the partial settlement agreement, Leota was allocated additional
holiday time according to the following schedule:
[Leota] is entitled to exercise additional holiday visitation
during even numbered years the day after Christmas,
December 26th until 2 days before school resumes, at her
own expense. She may also visit with [Natalie] for the
(continued...)
-2- 6559
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Bryan moved to Arizona in October 2008. In December 2009 Leota filed
a motion to modify custody. The superior court denied the motion to modify custody in
an order that stated Leota "failed to demonstrate a change in circumstances entitling her
to a hearing." The superior court reasoned that Bryan's move to Arizona did not
constitute a substantial change in circumstances because the parties lived in
"geographically distant" locations when the original custody decision was made, and
Leota raised no allegations that the move to Arizona would have an impact on her
visitation schedule. The superior court also ruled that Leota did not demonstrate that the
move would have an impact on Natalie's welfare.
Leota appeals.
III. STANDARD OF REVIEW
We review de novo "[w]hether a moving party has made a prima facie
showing sufficient to justify a custody or child support modification hearing."3 "The
parent moving for modification has the burden of proving a substantial change in
circumstances as a threshold matter"4 to obtain a hearing on whether the child's best
interests require modification of custody. We will affirm a denial of a modification
motion without a hearing "if, in our independent judgment, the facts alleged, even if
2(...continued)
second half of her spring break during odd numbered years.
[Leota] may also have [Natalie] for Thanksgiving on even
numbered years for a three day visit that is not to interfere
with [Natalie's] schooling.
3 Hunter v. Conwell, 219 P.3d 191, 195 (Alaska 2009) (citing Harrington v.
Jordan, 984 P.2d 1, 3 (Alaska 1999)).
4 Morino v. Swayman, 970 P.2d 426, 428 (Alaska 1999) (citingLong v. Long,
816 P.2d 145, 150 (Alaska 1991)).
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proved, cannot warrant modification, or if the allegations are so general or conclusory,
and so convincingly refuted by competent evidence, as to create no genuine issue of
material fact requiring a hearing."5
IV. DISCUSSION
The superior court denied Leota's motion to modify custody without
holding a hearing because it decided she "failed to demonstrate a change in
circumstances entitling her to a hearing." Leota argues that Bryan's move to Arizona
constitutes a substantial change in circumstance as a matter of law, and that the move
requires a hearing to determine whether modification of custody is in Natalie's best
interests. Leota's argument is supported by our case law.
In Alaska, modification of custody requires a showing that there has been
a substantial change in circumstances since the last custody order was entered and that
the modification is in the child's best interests.6 The moving party bears the burden of
demonstrating that a substantial change in circumstances has occurred.7 If the moving
party satisfies the threshold requirement of establishing a substantial change in
circumstances, the superior court must hold an evidentiary hearing on the motion to
determine whether the proposed change in custody is in the child's best interests.8
5 Id. (quoting C.R.B. v. C.C., 959 P.2d 375, 378 (Alaska 1998)).
6 AS 25.20.110(a); see also Misyura v. Misyura, 244 P.3d 519, 521 (Alaska
2010); Hunter, 219 P.3d at 195-97.
7 Morino, 970 P.2d at 428 (citing Long, 816 P.2d at 150).
8 See Acevedo v. Liberty, 956 P.2d 455, 457 (Alaska 1998) (internal citation
omitted).
-4- 6559
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"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' "9
and "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 [out
of-state]."10
After Leota's motion to modify custody was denied, she filed a motion for
reconsideration. She again argued that Bryan's out-of-state move constituted a
substantial change in circumstances and that she was entitled to a hearing. Her motion
cited several Alaska cases that have established and reaffirmed this rule.11 The superior
court responded with an order acknowledging the Alaska cases cited in Leota's motion,
but observing that each of the cases relied on House v. House.12 The superior court
distinguished House because that case involved a custody and visitation order that was
put in place when the parties lived in the same geographic area, while Leota had moved
to Anchorage by the time the superior court entered the custody order in this case. The
superior court also noted thatHouse was predicated on the children facing a "potentially
disturbing and upsetting change in circumstances" because they would be "likely to have
less frequent contact with the noncustodial parent who continue[d] to reside in the state."
9 Barrett v. Alguire, 35 P.3d 1, 6 (Alaska 2001) (quoting Acevedo , 956 P.2d
at 457).
10 Id.
11 Hamilton v. Hamilton, 42 P.3d 1107, 1115 (Alaska 2002) (citing Moeller-
Prokosch v. Prokosch, 27 P.3d 314, 316 (Alaska 2002);House v. House, 779 P.2d 1204,
1207 (Alaska 1989));Barrett, 35 P.3d at 6 (quotingAcevedo , 956 P.2d at 457); Pearson
v. Pearson, 5 P.3d 239, 242 (Alaska 2000) (citing House, 779 P.2d at 1207-08).
12 779 P.2d 1204.
-5- 6559
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Concluding that "it was not simply the move out-of-state, but the negative impact upon
the noncustodial parent's visitation" that was pivotal in House, the superior court denied
Leota's motion for reconsideration. We are not persuaded that House is distinguishable.
Bryan and Leota lived several hundred miles apart when the superior court
entered its custody order,13 but many parents in Alaska have homes separated by long
distances and we have not exempted the custody orders in those cases from the rule that
a custodial parent's out-of-state move is a substantial change in circumstances as a matter
of law.14 And the many reasons for this rule apply whether or not the parents lived near
each other when custody was initially determined. Because Alaska is geographically
separated from the contiguous United States by a significant distance, an out-of-state
move will typically mean that visitation will become more costly and more time-
consuming. As a result, visitation may occur less frequently and there may be fewer
opportunities for children to visit with extended family living in Alaska. We are also
mindful that the finances of many families make it necessary for parents to consider
allowing their children to travel unaccompanied at a fairly young age. That process is
significantly more complicated if the travel extends outside of Alaska because such travel
is lengthy, often requires changing planes, and often requires more than one flight -
unlike some in-state travel. Out-of-state moves also necessarily mean that children will
live in different homes and neighborhoods and will attend different schools. For children
with special healthcare or educational needs, changes in healthcare providers, therapists,
13 The distance between Sitka and Anchorage is over 600 miles by air.
14 We have articulated this holding in several cases. See Hamilton, 42 P.3d
at 1115; see also Barrett, 35 P.3d at 6 (quoting Acevedo , 956 P.2d at 457); Pearson, 5
P.3d at 242 (citing House, 779 P.2d at 1207-08); Long v. Long, 816 P.2d 145, 152
(Alaska 1991) (citing House, 779 P.2d at 1207-08).
-6- 6559
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and teachers can be equally significant. All of these factors reinforce the well-
established rule that an out-of-state move is a substantial change in circumstances as a
matter of law.
Bryan's move to Arizona does not mean that custody will change, but it
does require a hearing on Leota's motion to modify custody. A hearing will allow the
superior court an opportunity to consider all of the relevant evidence and determine
whether modification of custody is in Natalie's best interests.
V. CONCLUSION
We REVERSE the superior court's determination that Bryan's move to
Arizona did not constitute a substantial change in circumstances and REMAND for a
hearing on the motion to modify custody.
-7- 6559
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