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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Rego v. Rego (8/12/2011) sp-6587
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
MICHAEL P. REGO, )
) Supreme Court No. S-13650
Appellant, )
) Superior Court No. 4FA-08-02185 CI
v. )
) O P I N I O N
JOANNA M. REGO, )
) No. 6587 - August 12, 2011
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Fourth
Judicial District, Fairbanks, Michael A. MacDonald, Judge.
Appearances: Bonnie J. Coghlan, Law Office of Rita T.
Allee, P.C., Fairbanks, for Appellant. Joanna Rego, pro se,
Fairbanks, Appellee.
Before: Carpeneti, Chief Justice, Fabe, Winfree, and
Stowers, Justices. [Christen, Justice, not participating.]
CARPENETI, Chief Justice.
I. INTRODUCTION
A child lived with both of his parents for the first two years of his life. His
parents then separated, and they shared custody of the child for about a year, first under
an informal agreement and later under the terms of the divorce decree. Less than a month
after the divorce decree was entered, the father notified the mother that he intended to
relocate to his former home state. Following a hearing, the superior court ruled that the
planned move constituted a change of circumstances that justified custody modification.
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Applying a best interests analysis, the superior court awarded custody to the mother if
the father moved. Because the superior court applied the correct legal standard
concerning the planned move, and did not abuse its discretion in weighing the best
interest factors, we affirm.
II. FACTS AND PROCEEDINGS
Joanna and Michael Rego married in Fairbanks on September 18, 2004.
Michael had moved to Alaska from New Jersey, where he had worked as a gas
technician. He has family in both New Jersey and the Fairbanks area. Since high school,
Joanna has lived primarily in the area around Fairbanks and Nenana; she has an extended
network of family and friends around Fairbanks.
Joanna and Michael had one child together, a son, Dante, who was born in
April 2006. The parties agree that Dante has the ordinary needs of a child his age.
Joanna's three daughters from prior relationships lived with Michael and Joanna during
their marriage. Joanna, Michael, the custody investigator, and several other witnesses
agreed that Dante has a close relationship with his half-sisters, especially with the middle
one.
Michael has stated that during their marriage he was "primarily responsible
for Dante's day to day care while [Joanna] worked nights." By contrast, Joanna has
asserted that she "was primarily responsible for Dante's day to day care" during their
marriage, including staying home with Dante during his first year of life. When Dante
turned one, Michael and Joanna agreed that she would begin to work a late shift at Fred
Meyer and stay with Dante until Michael got home from work. Joanna testified that after
Dante turned two, she and Michael agreed that she should increase her hours at work to
raise the family income. Michael testified that he watched Dante during the evenings
when Joanna was at work.
A. Divorce And Initial Custody Agreement
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Joanna filed for divorce in July 2008. When the parties separated, Joanna
and her daughters moved out. Michael remained in the Moose Creek home that he and
Joanna had purchased together.
After the separation, Dante spent time with each parent. During the first
five months, a formal visitation schedule was not yet in place. On December 19, 2008,
the parties filed a child custody, visitation, and support agreement with the court.
The agreement detailed how Michael and Joanna would cooperate on
various child-rearing issues including child support, health insurance, tax deductions, and
permanent fund dividends. The agreement provided for shared physical custody on a
70/30 schedule where Michael would have five overnights with Dante each week and
Joanna would have two overnights with Dante each week on days when she was not
working. The agreement set out a special schedule for holidays. It provided for the
possibility of relocation as follows:
Neither party plans to move from the greater Fairbanks,
Alaska area at this time. If a party plans to move from this
area, that party shall give the other party 180 days notice
prior to the move. This notice is for the purpose of allowing
enough time to attempt to reach an agreement regarding
custody and visitation or to allow one of the parties to file a
motion for the court to determine the custody and visitation
arrangement that is in the child's best interests under the
circumstances that will exist after the party's move. Unless
otherwise ordered by the court, the child will remain with the
parent living in the Fairbanks community until further court
order.
The parties agreed to "work together in rearing the child." Joanna and Michael each
cared for Dante and contributed to his continued development between December 2008,
when the agreement was reached, and September 2009, when the case went to trial.
Under the agreement, Michael had custody of Dante from 6 p.m. on Saturdays to 2:30
p.m. on Thursdays, while Joanna had Dante for the remainder.
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B. Motion For Modification
Michael lost his job in Alaska in December 2008, the same month that the
divorce decree was entered. Michael testified that because he had been tardy and absent
from work several times during the final months of his marriage, he was "the easiest one
to let go" during the recent economic decline. Michael later found a job and "prospects
for career advancement" in New Jersey, his former home state.1
In January 2009, Michael notified Joanna of his intent to leave the
Fairbanks area. The parties sought to reach a new agreement regarding ongoing custody
and visitation, but were unsuccessful.
In March, Michael filed a motion requesting that the court award him
primary custody, allow Dante to move with him to New Jersey, and provide for
reasonable visitation with Joanna. Joanna opposed the modification. She, too, sought
primary custody of Dante with reasonable visitation for the other parent.
1 Michael testified that he looked for work in the Fairbanks area, including
looking for work at the University of Alaska at Fairbanks, the Alaska Railroad, and union
halls. In response to questioning from the court, Michael stated that he decided to move
to New Jersey three or four months after he was let go from his job. Michael testified
that in New Jersey, there are more employment opportunities to work in his field as a
small-appliance gas technician. He testified that he secured interim employment at
Vanguard Pest Control and hopes that after passing a journeyman test, he will be able to
secure a job with a New Jersey utility company where he once worked.
When questioned by the court, Michael testified that he decided to move
to New Jersey "about three or four months after [he] was let go from [his] job." There
was also evidence in the record that Michael made this decision earlier: In a January 5
filing, Joanna asked the court to prevent Michael from taking Dante to New Jersey at the
end of the month.
The court found that Michael's reasons for moving were legitimate
"[a]lthough his testimony regarding the timing of the decision [was] not credible." In
particular, the court found that "as of January 2009[,] Michael intended to leave
Fairbanks."
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C. Custody Investigator's Report
On Michael's motion, the superior court appointed Ted Sponsel as a
custody investigator. The investigator concluded that each parent was "in serious need
of parenting training," but "both parents clearly love Dante and . . . he is unlikely to be
harmed when in the care of either parent." The investigator added, "in fact, [Dante's]
precociousness, assertiveness and generally genial temperament are a testament to
[Joanna and Michael's] good parenting thus far."
Sponsel made the following recommendations: If Michael remained in
Fairbanks, Dante should stay with Michael four nights per week and Joanna's custody
should be increased to three nights per week. If Michael relocated to New Jersey,
Michael should have primary custody of Dante while Joanna should have summers and
vacations with Dante. At trial, the investigator clarified that, if Michael moved to New
Jersey and was awarded primary custody, Dante should stay with Joanna for the entire
summer rather than following a customary graduated schedule.2
D. Superior Court Trial And Post-Trial Orders
Superior Court Judge Michael A. MacDonald conducted a three-day trial
in September 2009 and heard extensive testimony about Dante's needs, Michael's and
Joanna's parenting behaviors, and other circumstances affecting Dante's development.
In addition to the facts discussed above, the court heard testimony about Joanna's
relationship history; problems at the end of Joanna's and Michael's marriage; Joanna's
close relationships with her daughters' paternal grandmothers; and Michael's plans to
enroll in parenting classes.
Following the trial, the superior court awarded Joanna primary physical
custody during the school year, setting out a schedule for summer and holiday visitation
2 A customary graduated schedule gives the non-custodial parent one week
of summer visitation for every year of the child's age.
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with Michael. The court concluded that Michael had legitimate reasons for moving to
New Jersey. But the court did not accept the custody investigator's recommendation that
Dante should move to New Jersey with Michael, noting "both the father and the custody
investigator overstate the relationship between the father and son when they characterize
it as primary and the mother's as secondary." According to the court, Dante had primary
bonds of love and affection with both parents, each parent was able to care for him, and
it would be desirable to maintain custody with either parent. In awarding primary
custody to Joanna, the court reasoned that Joanna was the more experienced parent,
better able to provide for Dante's needs (particularly his need to maintain his sibling
relationships) and more willing to facilitate Dante's relationship with Michael.
Michael appeals the superior court's custody modification order. He has
stayed in the Fairbanks area pending this appeal and filed a motion for interim custody.
On December 28, 2009, Judge MacDonald held a hearing on this motion.3 He concluded
that as long as Michael lives in Fairbanks, there has been no change of circumstances that
requires modification and the pre-modification custody arrangement will remain in effect.
III. STANDARD OF REVIEW
Whether the superior court applied the correct legal standard is a question
of law that we review de novo, "adopting the rule of law that is most persuasive in light
of precedent, reason and policy."4 Trial courts have broad discretion in determining
whether a proposed child-custody modification is in the child's best interests.5 We will
3 Pursuant to our order of February 11, 2010, the transcript of this post-trial
hearing is included in the record before us.
4 McQuade v. McQuade, 901 P.2d 421, 423 n.3 (Alaska 1995) (citing Cox
v. Cox, 882 P.2d 909, 913 (Alaska 1994)) (internal quotation marks omitted).
5 See Ebertz v. Ebertz, 113 P.3d 643, 646 (Alaska 2005) (citing Smith v.
(continued...)
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set aside the superior court's best interests determination only if the trial court abused its
discretion or if the fact findings on which the determination is based are clearly
erroneous.6 Assigning disproportionate weight to particular factors while ignoring others
is an abuse of discretion.7 We will conclude that a factual finding is clearly erroneous
if, based on a review of the entire record, the finding leaves us with a definite and firm
conviction that a mistake as been made; we may conclude a finding is clearly erroneous
even if there is some evidence in the record to support the finding.8 "We give 'particular
deference' to the trial court's factual findings when they are based primarily on oral
testimony, because the trial court, not this court, performs the function of judging the
credibility of witnesses and weighing conflicting evidence."9
IV. DISCUSSION
In appealing the custody modification order that grants Joanna primary
physical custody of Dante when Michael moves to New Jersey, Michael argues that the
superior court committed legal error by holding his decision to move to New Jersey
against him. He further argues that the superior court abused its discretion by assigning
too much weight to Dante's sibling relationships and geographical stability while
overlooking Joanna's dangerous behaviors and the stability offered in Michael's
household. Joanna filed pro se a brief, which defends the superior court's custody award.
5 (...continued)
Weekley, 73 P.3d 1219, 1222 (Alaska 2003)).
6 Id. (citing Hamilton v. Hamilton, 42 P.3d 1107, 1111 (Alaska 2002)).
7 Id. (citing Barrett v. Alguire, 35 P.3d 1, 5 n.5 (Alaska 2001)).
8 Id. (citing Jenkins v. Handel, 10 P.3d 586, 589 (Alaska 2000)).
9 Id. (citing In re Adoption of A.F.M., 15 P.3d 258, 262 (Alaska 2001)).
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Alaska Statute 25.20.110 authorizes courts to modify child-custody and
visitation awards if (1) there has been a change in circumstances that justifies
modification and (2) the modification is in the best interests of the child.10 The moving
party is required to show a substantial change in circumstances, as a threshold matter,
before the court moves on to consider the best interests analysis.11 "We have held that
a custodial parent's decision to move out-of-state . . . amounts to a [substantial] change
in circumstances as a matter of law."12 Both parties acknowledge that Michael's decision
to relocate to New Jersey constitutes a change in circumstances that justifies modification
under AS 25.20.110.
Two statutes guide the superior court's best interests determination:
AS 25.20.110, the modification statute cited above, and AS 25.24.150.13 The
modification statute directs courts to consider "the past history of the parents with respect
to their compliance with . . . agreements relating to the child or to other children."14
Alaska Statute 25.24.150(c) directs the court to "determine custody in accordance with
the best interests of the child," considering the following nine factors:
10 Melendrez v. Melendrez, 143 P.3d 957, 962 (Alaska 2006) (affirming
custody modification where both prongs satisfied).
11 Maxwell v. Maxwell, 37 P.3d 424, 426 (Alaska 2001) (concluding that
superior court was not required to make best interests determination where moving party
failed to show substantial change in circumstances).
12 Barrett, 35 P.3d at 6 (quoting Acevedo v. Liberty, 956 P.2d 455, 457
(Alaska 1998)) (internal quotation marks omitted) (alteration in original).
13 Alaska Statute 25.24.150 governs judgments for custody that arise from
divorce actions and other proceedings. Under the statute, courts have broad authority to
make, modify, and vacate custody and visitation orders where necessary or proper. See
AS 25.24.150(a).
14 AS 25.20.110(b).
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(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 child's 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; and
(9) other factors that the court considers pertinent.
Alaska Statute 25.24.150(d) directs that the court may consider "only those facts that
directly affect the well-being of the child."15
15 AS 25.24.150(d). See also S.N.E. v. R.L.B., 699 P.2d 875, 878 (Alaska
1985) ("We have often endorsed the requirement that there be a nexus between the
conduct of the parent relied on by the court and the parent-child relationship.").
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We have decided a number of custody-modification appeals arising from
parents' plans to relocate.16 As we have explained, in such cases the superior court must
assess "whether there are legitimate reasons for the move . . . [and] the impact of the
move on the child."17 A move is legitimate if it is not primarily motivated by a desire to
make visitation more difficult.18 In this case, the superior court found that Michael's
move to New Jersey was "motivated by a desire to seek employment in Newark and to
return to his hometown where he has extended family." The court added, it was "not
motivated by a desire to interfere with the relationship between Dante and his mother."
Thus, the superior court concluded that the reasons for Michael's move were legitimate.
Joanna does not contest this conclusion on appeal.
Once the relocating parent has madethe threshold showing that a legitimate
move justifies custody modification, there is no presumption favoring either parent when
the court considers the child's best interests.19 The relocating parent secures primary
custody by showing that living with that parent in a new environment better serves the
child's interests than living with the other parent in the current location. In undertaking
this analysis, the superior court must assume that the legitimate move will take place and
16 See, e.g., Moeller-Prokosch v. Prokosch, 99 P.3d 531, 533 (Alaska 2004)
[hereinafter Moeller-Prokosch III].
17 Barrett, 35 P.3d at 6 (quotingMoeller-Prokosch v. Prokosch, 27 P.3d 314,
317 (Alaska 2001) [hereinafterMoeller-Prokosch I]) (internal quotation marks omitted).
18 Moeller-Prokosh I, 27 P.3d at 316.
19 See McQuade v. McQuade, 901 P.2d 421, 424 (Alaska 1995) (approving
the proposition that "if parents have joint physical custody and one parent seeks to move
the child, 'the appropriate standard would be similar to a de novo review that would be
made at an initial custody determination' ").
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consider the consequences that the move will have on the child - both positive and
negative.20
Michael's briefing draws an analogy between the facts of this case and the
Moeller-Prokosch v. Prokosch cases. In those cases, we made it clear that the superior
court may not hold a legitimate move against a relocating parent.21 The Moeller-
Prokosch cases set the governing standard for custody decisions involving parental
relocation. Once a parent has shown that the decision to relocate is a legitimate one, then
20 Eniero v. Brekke, 192 P.3d 147, 150 (Alaska 2008) ("[W]e have not
suggested that the best interests analysis cannot take into account how a move would
exacerbate problems such as a parent's willingness to foster communication between the
child and the other parent."); Fardig v. Fardig, 56 P.3d 9, 13 n.12 (Alaska 2002) ("[T]he
impact of any potential move may be taken into consideration by the court in assessing
the best interests of the child."); and Moeller-Prokosch I, 27 P.3d at 316 ("The best
interests analysis necessarily will include assessing the impact of the parent's move on
the child.").
21 In Moeller-Prokosch I, we explained that "[n]o Alaska law allows a court
to require a custodial parent to forego relocation if custody with that parent remains in
the child's best interests and relocation is not for an illegitimate reason." 27 P.3d at 317.
In the next case, we added:
[T]he court should not hold the move against the party who
proposes to move. The court should not find her to be,
because of the move, "selfish and unwilling to promote an
open and loving relationship between" the child and the other
parent. Legitimately motivated moves are a common feature
of "today's mobile society." Such moves would be unfairly
deterred if courts were to hold that the moving parent has
demonstrated by her desire to move a parental deficiency or
weakness.
Moeller-Prokosch v. Prokosch, 53 P.3d 152, 155 (Alaska 2002) [hereinafter Moeller-
Prokosch II]. In Moeller-Prokosch III, we made clear that this analysis "requires
symmetric consideration of the consequences to [the son] both if [his mother] leaves with
him and if she leaves without him." 99 P.3d at 536.
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that parent is not required to defend the move a second time by showing that life with
that parent is superior to life with both parents in the same city.22 As Michael's argument
recognizes, we take seriously the alleged infringement on a custodial parent's right to
relocate. However, Michael's position in the present case would require us to treat the
superior court's decision with considerable and unwarranted skepticism. Based on our
review of the record in this case, we are satisfied that the superior court did not hold a
legitimate move against Michael. We address Michael's arguments below.
A. The Superior Court Did Not Commit Legal Error By Improperly
Conditioning Michael's Custody Award On Staying In Alaska.
Michael argues that the superior court applied an improper standard by
failing to assume that the move to New Jersey would take place. According to Michael,
"the trial court compared the life Dante had with both parents in one community to the
life he would have if Michael relocated." This kind of analysis places the moving parent
at a prohibited disadvantage; it requires the moving parent to compensate for the benefits
of more regular contact with both parents. Had the superior court in this case required
Michael to bear the undue burden that he suggests, its order would not stand. However,
having scrutinized the record before us in its entirety, we cannot conclude, as Michael
suggests, that the superior court "misunderstood" the proper legal standard.
When it undertakes a best interests analysis, the superior court is required
to assume that a parent's legitimate proposed move will take place.23 We have directed
trial courts to undertake "symmetric consideration" of the child's experience living with
22 Moeller-Prokosch II, 53 P.3d at 156 (directing the superior court to "take
the move as a given and determine whether it would be in the best interests of [the son]
to be in the custody of his father in Alaska or of his mother in Florida").
23 See id. at 156.
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each parent, assuming the proposed relocation will take place.24 In this case, the superior
court acknowledged that it was bound by these rules; it identified the proper analysis and
cited the governing case law extensively.
The superior court compared Dante's life with Michael in New Jersey (and
Joanna in Fairbanks), to Dante's life with Joanna in Fairbanks (and Michael in New
Jersey). In particular, the superior court determined that if Dante moved to New Jersey
with Michael, "[t]here will be few . . . positive interactions with his mother and sisters."
In contrast, the court identified "Joanna's patience and respect for her daughters'
relationships with their fathers" and concluded that Joanna would do a "better job" than
Michael of facilitating Dante's contact with his non-custodial parent. Contrary to
Michael's assertion, the superior court did not "disregard[] the fact that Michael will be
moving from Fairbanks." Nor did the superior court disregard Michael's important role
in Dante's life. Rather, the court concluded that while maintaining contact with each
parent would serve Dante's needs, non-parental relationships tipped the balance in favor
of awarding Joanna primary custody. While the superior court's analysis does not detail
every aspect of Dante's future in Alaska and in New Jersey, the court gives sufficiently
detailed and "symmetric consideration" to Dante's experience if Michael took him to
New Jersey or relocated to New Jersey without him.
Michael also appears to argue that even if the superior court formally
applied the proper rules, its analysis was "improperly colored by the court's wish to
prevent the move." He points to the court's "confrontational tone" during the hearing in
asserting that the court directed a "degree of hostility toward Michael based on his
24 Moeller-Prokosch III, 99 P.3d at 535-36. See also Silvan v. Alcina, 105
P.3d 117, 121-22 (Alaska 2005) ("Unlike Moeller-Prokosch III, there is no evidence to
indicate that the superior court did not individually address and consider both parents'
situations." ).
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decision to leave Fairbanks." We have previously examined a custody-hearing transcript
- to determine if the court's analysis was colored by a desire to prevent a move - and
concluded that the superior court's "line of questioning . . . suggests possible
preoccupation with the irrelevant question whether [a parent] should be permitted to
relocate, rather than the impact of [the] assumed move."25 We similarly scrutinized the
record before us in this case. We conclude that Michael's position is not supported by
the record and would require us to apply undue skepticism to the superior court's
decision.26
Like Michael, we are concerned by the superior court's suggestion at a pre-
trial conference that Dante's best interests would be maximized if Michael remained in
Fairbanks. However, these suspect comments do not outweigh the evidence that the
superior court took time to carefully consider the governing rules before deciding the
case. Despite its apparent suspicions about Michael's move at the beginning of the trial,
the superior court was convinced by the close of the trial that Michael's decision to
relocate was legitimate; the court issued an oral finding to that effect after closing
arguments. Although the court acknowledged its persistent concerns about separating
Dante from his sisters, it affirmed that it would "take no inference from the move against
Mr. Rego." At the conclusion of the trial, the court made clear that it would deliberate
and review the applicable cases. The court's written decision in this case confirms the
care with which the court approached the issues before it.
Michael points out that at trial, the superior court questioned him about his
decision to move and was particularly interested in the detrimental effect of relocation
25 Moeller-Prokosch III, 99 P.3d at 536 n.18.
26 See, e.g.,McDanold v. McDanold, 718 P.2d 467, 470 (Alaska 1986) ("We
will not substitute our judgment or hypothesize on what unstated factors may have
influenced the trial court.").
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on Dante's relationship with his siblings. Michael suggests that the superior court's
questioning indicates unwarranted concerns about his decision to relocate, but this
questioning bore on relevant issues around which there may have been uncertainty before
the trial. Although the court is prohibited from holding a legitimate move against
Michael, the court is required to determine whether the move was, in fact, for a legitimate
27
purpose. The pre-trial briefing was evasive about the circumstances under which
Michael lost his job, stating only that his "employment ended." Considering that
Michael notified Joanna of his intent to leave Fairbanks less than a month after they
formalized the custody agreement, it is unsurprising that at its earliest opportunity, the
court sought clarification about Michael's decision to relocate. Questioning the custody
investigator about how the move would affect Dante's relationship with his sisters is also
relevant under our law; this line of inquiry fits squarely within the "best interests"
analysis. Michael's claim that the trial court "expressed the view that both parents
should reside in the same community" exaggerates the trial court's expressed concerns
about the effects of the move on Dante. After reviewing the record in this case, we are
not convinced that the court's ultimate conclusions were "improperly colored" by a view
that both Dante's parents should remain in Fairbanks.
Michael next argues that the superior court's "decision is crafted to prevent
[him] from relocating away from Fairbanks." Michael correctly points out that if he
remains in Fairbanks, Dante will continue to live primarily with his father, but if Michael
leaves Fairbanks, Joanna will get custody. We have made clear that "the trial court does
not have the authority to place restrictions on a parent's ability to relocate."28 However,
27 See, e.g., Barrett v. Alguire, 35 P.3d 1, 6 (Alaska 2001) ("[T]he court must
. . . assess[] whether there are legitimate reasons for the move.").
28 Moeller-Prokosch I, 27 P.3d 314, 317 (Alaska 2001).
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the superior court is authorized to order "alternative custody arrangements dependent on
whether the move occur[s]."29 We have recognized:
Often the definiteness of a parent's move is uncertain or
unclear, especially where the move may depend on the
court's custody determination itself. A court may be faced
with a situation where, before an initial custody determination
has been made, a parent seeking custody will condition his or
her move plans on obtaining custody. Or the court may be
confronted with a custodial parent who would choose not to
move if he or she cannot maintain custody.[30]
Michael testified convincingly that he intends to move to New Jersey and the court
appears to have credited this testimony. Nevertheless, there is a possibility that Michael
will decide to stay in Fairbanks and an attendant possibility that Michael's decision will
be influenced by the court's custody orders. The chance that the superior court's
decision will influence Michael's decision to move does not justify reversing the superior
court's order.
Michael argues that "[t]he effect of the trial court's decision would be to
require every parent to remain in the community where that parent's child was born, or
relinquish primary custody." Michael's argument exaggerates the effect of affirming the
superior court. Michael is right that in some cases where a parent undertakes a legitimate
move, the child's best interests are met by keeping the child in the custody of the moving
29 Silvan v. Alcina, 105 P.3d 117, 122 (Alaska 2005) (citingMoeller-Prokosch
I, 27 P.3d at 317 n. 8);see also Chesser v. Chesser-Witmer, 178 P.3d 1154, 1157 (Alaska
2008) (affirming a one-year custody order because "we decline to undo the current
arrangement and interrupt a perhaps more gradual process") (citing Chesser-Witmer v.
Chesser, 117 P.3d 711, 720 (Alaska 2005)).
30 Moeller-Prokosch I, 27 P.3d at 316.
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parent.31 However, the law does not guarantee that a relocating parent can maintain (or
obtain) primary custody.32 A parent's decision to relocate - including a legitimate
decision to relocate - changes the best interests calculus.33 We have "consistently
avoided mandating rigid rules for making custody determinations."34 Instead, "such
determinations are based upon the facts and circumstances of each particular case."35 In
the present case, important evidence is contested. The superior court analyzed this
evidence with due consideration for the statutory best interest factors and governing
standards. The fact that the court's ultimate order is not favorable to Michael and may
31 See, e.g., Veselsky v. Veselsky, 113 P.3d 629, 632-36 (Alaska 2005)
(affirming custody award to relocating mother);Moeller-Prokosch III, 99 P.3d 531, 535
(Alaska 2004) ("[O]ur decisions recognize that courts may properly award primary
custody to the relocating parent when that parent offers superior emotional stability.");
Vachon v. Pugliese, 931 P.2d 371, 380 (Alaska 1996) (concluding that custody belonged
with "primary caregiver" who relocated to Massachusetts); House v. House, 779 P.2d
1204, 1207-08 (Alaska 1989) (affirming custody award to relocating father).
32 Blanton v. Yourkowski, 180 P.3d 948, 953-55 (Alaska 2008) (affirming
grant of custody to father where mother planned possible move to Texas); Silvan, 105
P.3d at 120-23 (Alaska 2005) (affirming grant of custody to parent who remained in
Alaska).
33 Barrett v. Alguire, 35 P.3d 1, 6 (Alaska 2001) ("The court is to assess the
best interests in light of all of the relevant factors, including the impact of the move on
the child.").
34 McQuade v. McQuade, 901 P.2d 421, 425 (Alaska 1995) ("[I]n custody
matters, 'there is no hard and fast rule[.]' ") (quoting Nichols v. Nichols, 516 P.2d 732,
736 (Alaska 1973)).
35 Id.; see also Chesser v. Chesser-Witmer, 178 P.3d 1154, 1157 (Alaska
2008) (recognizing that superior court has "discretion to fashion custody awards designed
to meet the unique needs of the individuals involved") (quoting Deininger v. Deininger,
835 P.2d 449, 451 (Alaska 1992) (internal quotation marks omitted)).
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complicate his decision to move does not disrupt this conclusion. The superior court did
not improperly condition an award of custody to Michael upon him staying in Alaska.
B. The Superior Court Did Not Abuse Its Discretion In Determining That
Placing Dante With Joanna Would Be In Dante's Best Interests.
Michael argues that the trial court incorrectly analyzed the best interests
criteria in awarding Joanna custody of Dante. He further argues that the trial court made
clearly erroneous factual findings in the course of its best interests analysis. We address
the challenged factual errors as they arise in our discussion of the statutory best interests
criteria.
1. The superior court did not place undue emphasis on protecting
the relationship between Dante and his half-sisters.
Michael argues that the court "placed undue emphasis on protecting the
relationship between Dante and his elder half-sisters and ignored Dante's other needs,
in particular his need to maintain the relationship with his primary parent and his need
for continuing stability." We have recognized that while it is often desirable not to
separate siblings in the course of custody disputes, there is no rigid standard for weighing
the importance of maintaining sibling bonds against other factors.36 In this case, the court
heard testimony about Dante's close relationship with his half-sisters from Joanna,
Michael, and other witnesses, including the custody investigator who stated, "[i]t is
absolutely a horrible thing that he won't - that he's not around his siblings as much."
This evidence supports the superior court's findings that Dante has a particular social
need to maintain his sibling relationships and that "in Joanna's care, Dante can continue
his relationship with his sisters and be spared a significant negative impact that would
necessarily result from the move."
36 McQuade, 901 P.2d at 425-26 (concluding superior court did not
impermissibly favor sibling bonds over parental bonds).
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Michael challenges the court's reasoning by suggesting that Dante's
relationships with his sisters could be maintained even if Dante were in New Jersey.
Michael criticizes the superior court's reliance on the custody investigator's conclusion
that "severing these relationships would not be in Dante's best interests"37 and draws
attention to evidence that suggests Michael would help foster Dante's relationships with
his sisters. Michael points out that the record could have supported a different
conclusion about Dante's needs and his parents' ability to meet those needs. However,
that possibility does not compel reversal. The record supports the court's conclusion.
Michael contends that it was inappropriate to place so much weight on
Dante's relationships with his sisters in part because these sisters may not stay in the
same household, or even in Fairbanks, as Dante grows up. The court's assessment in a
child custody case is necessarily somewhat prospective;38 the trial court considers which
living arrangement is likely to be in the child's best interests in the future. While the
court cannot be certain about how Dante's relationships with his half-sisters and other
37 Michael correctly points out that the superior court may have improperly
attributed the word "sever" to the custody investigator when it stated, "[t]he child
custody investigator testified that moving from Fairbanks and severing these bonds
[between Dante and his sisters] would be 'horrible' for Dante." Michael does not appear
to challenge this as a clearly erroneous factual finding. In any case, this mis-attribution
is, at most, harmless error. The custody investigator testified that being separated from
his sisters would be "horrible" for Dante. The overall thrust of the court's sentence -
that moving away from his sisters and not maintaining very regular contact with them
would be horrible for Dante - does not misrepresent the evidence in the record.
38 See, e.g., Meier v. Cloud, 34 P.3d 1274, 1279 (Alaska 2001) ("The
[custody] statute's plain language requires the court to view continuity and stability both
prospectively and retrospectively: the court must examine both the time that a child 'has
lived' in a stable environment and 'the desirability of maintaining [that] continuity.' "
(quoting AS 25.24.150(c)).
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family members will develop, that is not enough to disturb the trial court's conclusion
that granting Joanna custody will best serve Dante's social needs.
Michael criticizes the superior court's invocation of Melendrez v.
Melendrez,39 Rhodes v. Rhodes,40 and Nichols v. Nichols41 "to support the premise that
siblings should not be separated." Michael misconstrues the superior court's treatment
of these cases. The trial court did not apply this "premise" as an absolute rule; rather, it
acknowledged that courts have considered sibling bonds among other considerations.
Nevertheless, Michael distinguishes his case from Melendrez,Rhodes, and
Nichols because those cases involved full siblings rather than half-siblings.42 Joanna
rejects the relevance of this distinction. We agree with Joanna: As noted above, the
inquiry into the importance of sibling bonds depends on the particular circumstances of
each case. While there may be a higher likelihood that Dante's half-siblings could end
up living in a different household from Dante and Joanna, the difference between full-
and half-siblings is not determinative. The superior court assessed Dante's needs and
best interests and, in light of the record, we defer to that determination unless it falls
outside the range of what is reasonable.
39 143 P.3d 957 (Alaska 2006) (affirming superior court decision to place four
children in custody of father where mother sought custody of two children).
40 370 P.2d 902, 903 (Alaska 1962) (noting "the desirability of keeping the
children of the family together so that they may enjoy the normal condition of childhood
of growing up together as brothers and sisters").
41 516 P.2d 732, 736 (Alaska 1990) ("The question of whether or not it is
necessary to separate children must depend upon the facts and circumstances of each
particular case.").
42 Melendrez, 143 P.3d at 958;Nichols, 516 P.2d at 732-34;Rhodes, 370 P.3d
at 903.
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Michael also distinguishes his case fromMelendrez because in that case the
children had always lived together in the same household, whereas here Dante spent a
significant amount of time in his father's household without his sisters. Again, whether
the siblings in Melendrez spent more or less time together than Dante and his siblings is
not the relevant inquiry. What matters is whether the superior court's findings and
conclusions are supported by the particular facts of this case. As noted above, they are.
Finally, Michael challenges the finding that "[f]or his entire life Dante has
lived with his three half-sisters." He argues that this is clearly erroneous because Dante
had lived primarily with his father and apart from his sisters for more than a year
immediately preceding the hearing on Michael's motion for modification. The parties
do not contest that since the divorce, Dante has spent five nights per week at his father's
home. However, as Joanna points out, the evidence also supports finding that Dante has
lived in the same community with his half-sisters and had regular contact with them,
including living in the same household for at least two days each week almost every
week of his life. In fact, the sentences immediately following the challenged sentence
in the superior court's decision are:
There are strong bond[s] of love and affection existing
between Dante and his sisters. He had an intimate, daily
relationship with his sisters during the marriage. He has
continued in that close relationship with his sisters since
separation and lives with them when he is in his mother's
custody.
From this, it is clear that the trial court understood that Michael and Joanna's separation
reduced the amount of time Dante spent in the same household as his half-sisters. While
the court could have been more precise in describing Dante's lifelong relationship with
his sisters, we do not accept Michael's narrow reading of the phrase "lived with his three
half-sisters." In turn, we conclude that this finding was not clearly erroneous.
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We conclude that there is extensive testimony in the record about Dante's
close relationship with his half-sisters, and that therefore the superior court did not err
in finding that maintaining contact with his sisters is an important social need that Joanna
is best able to meet.
2. The superior court did not ignore Dante's need to maintain his
relationship with Michael.
Michael argues that the superior court failed to give proper weight to
Dante's relationship with his father. Alaska Statute 25.24.150(c) directs courts to
consider "the love and affection existing between the child and each parent"43 and "the
capability and desire of each parent to meet [the child's] needs."44 We have held that
in determining the best interests of a child, the court need not
discuss each statutory factor in detail; the court's findings
will be sufficient if they "give us a clear indication of the
factors which [the court] considered important in exercising
its discretion or allow us to glean from the record what
considerations were involved."[45]
In the present case, the superior court found that Dante has primary bonds of love and
affection with his father and that Michael is able to meet Dante's needs. As Michael
points out, the superior court did not elaborate further on Dante's bond with Michael or
the stability Dante experiences in Michael's home. Nevertheless, the court followed the
statutory mandate in considering Dante's relationship with Michael. The absence of
further elaboration about Dante and Michael's relationship is not error, because the
superior court's decision clearly indicatesthe factors it considered important in awarding
43 AS 25.24.150(c)(4).
44 AS 25.24.150(c)(2).
45 Ebertz v. Ebertz, 113 P.3d 643, 648 (Alaska 2005) (quoting Smith v.
Weekley, 73 P.2d 1219, 1225 (Alaska 2003)).
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primary custody to Joanna, namely her willingness and ability to foster Dante's
relationship with his father, siblings, and extended family.
In the same vein, Michael also argues that the trial court improperly ignored
Dante's relationships with Michael's extended family and friends in New Jersey. But the
superior court did make reference to Michael's New Jersey family in its order.
Moreover, neither AS 25.24.150 nor AS 25.20.110 mandates consideration of the child's
extended family as part of the best interests analysis in a custody modification.
As noted above, we have directed trial courts to undertake "symmetric
consideration" of the child's experience living with each parent. Michael does not argue
specifically that the greater attention to family connections in Fairbanks is a prohibited
"asymmteric" analysis. In any case, the superior court's greater attention to Dante's
family connections in Fairbanks is supported by the record; there was considerably less
evidence presented about Dante's relationships with family in New Jersey. The superior
court did not abuse its discretion by failing to discuss Dante's connections to his New
Jersey family in greater detail.
3. The superior court did not err in evaluating the stability of
Dante's environment.
Michael argues that the superior court "disregarded the stability Dante has
enjoyed while in the primary care of his father." The superior court is required to
consider "the length of time the child has lived in a stable, satisfactory environment and
the desirability of maintaining continuity" under AS 25.24.150(c)(5). The court is
authorized to evaluate "the children's 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."46 In the present case, the superior court found that both
46 McQuade, 901 P.2d at 426 (Alaska 1995) (quoting Evans v. Evans, 869
(continued...)
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Michael and Joanna do an acceptable job maintaining a stable, satisfactory environment
for Dante before it concluded that "[i]t is desirable to maintain custody in either parent's
household." In light of Dante's extended network of family and friends in Fairbanks, the
court later made the custody determination in Joanna's favor. The superior court
considered circumstances that Dante was likely to encounter in each environment, such
as contact with extended family, and showed due consideration for the statutory
"stability" factor.
Michael highlights that stability was "a factor that the custody investigator
found significantly favored Dante remaining in Michael's primary custody." We have
made clear that "a court may reject a custody investigator's recommendations" and carry
out a sound analysis that relies on other evidence.47 In the present case, custody
investigator Sponsel testified:
[T]he best thing a parent can give any child is stability as a
foundation for personality growth. That is that you have one
set of rules, you have one way of doing things and that's the
foundation upon which everything else is built in life.
He later noted that Michael's lifestyle was more structured than Joanna's. Sponsel
clarified, "certainly, Ms. Rego's home does have rules and general schedules but it is
much, much more lax or much, much more casual." The court also heard testimony that
both parents lacked stability in their romantic relationships with others following their
divorce. Faced with inconclusive and conflicting evidence, the superior court ultimately
granted custody to Joanna. The court was not required to credit Sponsel's testimony, and
46 (...continued)
P.2d 478, 482 (Alaska 1994) (internal quotation marks omitted)).
47 Ebertz v. Ebertz, 113 P.3d 643, 647 (Alaska 2005) (affirming custody
determination where superior court made reasonable decision based on all the evidence)
(citing Rooney v. Rooney, 914 P.2d 212, 219 (Alaska 1996)).
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----------------------- Page 25-----------------------
even if it did credit the testimony, the court was entitled to weigh the stability Michael
provides against other factors. The superior court resolved the ambiguities in the record,
and its analysis of Dante's stability was not an abuse of discretion.
Michael also argues that the court "over-emphasized geographical stability
and disregarded the stability Dante had experienced living with his father." Michael
correctly points out that we have recognizedtwo components of stability: geographic and
relational.48 However, Michael is incorrect in suggesting that the superior court
disregarded relational stability. The court considered the "extended network of family
and friends in Fairbanks" an important factor in Dante's stability; a review of the court's
opinion suggests that the court was more focused on Dante's relationships in the
Fairbanks community than the geographic location itself. We perceive no abuse of
discretion in this regard.
4. The superior court did not err in its analysis of domestic
violence, abuse, neglect, and substance abuse.
Michael argues that the court failed to apply the correct legal standard
because it did not address evidence of Joanna's multiple "unsuitable" past relationships,
use of alcohol, or indicators of potential child abuse and neglect. Paragraphs (7) and (8)
of AS 25.24.150(c) direct the court to consider evidence of domestic violence, abuse,
neglect, and substance abuse. However, AS 25.24.150(d) limits "the scope of judicial
inquiry [in a best interests determination during a change of custody proceeding] . . . to
48 Meier v. Cloud, 34 P.3d 1274, 1279 (Alaska 2001) ("Because the child will
no longer be able to spend equal time with each parent in . . . situations [where a parent
relocates to another state], a court considering the child's 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.") (citing West v.
Lawson, 951 P.2d 1200, 1203-04 (Alaska 1998)).
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facts directly affecting the child's well-being."49 We have explained that "instability in
relationships [does not] warrant a custody change where the parent's conduct does not
adversely affect the child or the . . . parenting abilities."50 After considering five of the
statutory best interest factors, the superior court concluded: "The other statutory factors
do not have significant bearing on this case. There is no domestic violence, abuse,
neglect, or substance abuse that has been shown to affect Dante."
Michael draws our attention to evidence that the superior court did not
address in detail. The fact that the court did not identify each piece of evidence
separately nor consider each in detail is not error because there are other indications that
the court considered the evidence that could bear on domestic violence, neglect, and
substance abuse, as required under the statute. The court specifically mentioned
"Joanna's history of relationships" and the importance of this information to the custody
investigator, but the court declined to attribute to this evidence the same significance.
Also, despite the custody investigator's concern about Joanna's past relationships, the
investigator recommended granting Joanna physical custody of Dante three nights per
week and during the summers. The trial court considered the conflicting evidence and
purposefully discredited the allegations that there was abuse, neglect, and violence that
affected Dante. This is supported by the record, and there is no abuse of discretion.
Michael argues that the court "misunderstood the concerns raised" about
Joanna's past relationships when, at the end of the trial, the court focused its questioning
49 West, 951 P.2d at 1203 (remanding for trial court to consider effect of
alternating six-month custody schedule on child) (quotingS.N.E. v. R.L.B., 699 P.2d 875,
878 (Alaska 1985) (internal quotation marks omitted)).
50 S.N.E., 699 P.2d at 878 (citing Craig v. McBride, 639 P.2d 303, 306 (Alaska
1982)); see also McDanold v. McDanold, 718 P.2d 467, 470 (Alaska 1986) (affirming
grant of custody to father in case where court heard evidence of mother's past
relationships and did not consider improper or impermissible factors).
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"on the brief period since Michael and Joanna separated." The superior court may
consider a parent's past in evaluating current stability and parenting ability, but "a
parent's past is not determinative."51 The superior court's greater attention to the period
after Dante was born does not necessarily mean that the court failed to consider Joanna's
earlier relationships. While Michael argues that Joanna's past relationships indicate a
risk that presently affects Dante and is likely to subject him to abuse in the future, the
superior court was not bound to accept this argument, and the court's rejection of this
argument was not clearly erroneous.
5. The superior court did not err in finding that Joanna has a
greater willingness and ability to facilitate Dante's relationship
with Michael than Michael has to facilitate Dante's relationship
with Joanna.
According to Michael, the superior court's finding that "Joanna has the
greater willingness and ability to facilitate a close and continuing relationship between
Dante and his other parent" is clearly erroneous. Michael notes that there were no
allegations at trial that Michael was late for, or obstructed, visits. Michael also pointed
to testimony from others who observed him encouraging Dante to speak with Joanna on
the phone and his own testimony about how he would like to prepare Dante for calls with
his mother on a more fine-tuned schedule. There was, indeed, as Michael points out,
testimony showing "the importance Michael placed on fostering Dante's relationship
with his mother." But the court was also exposed to conflicting evidence, including
evidence that Michael made inappropriate comments about Joanna in front of Dante.
Further, the court was exposed to evidence about Joanna's willingness to foster Dante's
relationship with Michael and evidence that she has played an active role in maintaining
51 McDanold, 718 P.2d at 470.
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family ties. In light of this evidence, the finding that Joanna was more willing to
facilitate contact with the other parent is not clearly erroneous.
Michael's briefing on appeal contrasts his attitude with "Joanna's decision
to terminate personal contact between Dante and Michael after she was awarded primary
custody." In making this assertion, Michael refers to extremely limited post-trial
evidence that is part of the record before us. There was no sworn testimony at the
hearing that took place on December 28, 2009; as a result, the superior court did not issue
new factual findings on the basis of the post-trial hearing. Like the superior court, we
are unwilling to rely on the post-trial hearing to change our conclusion that the evidence
at trial justified the superior court's determination that Joanna is more willing than
Michael to facilitate Dante's contact with the other parent.
V. CONCLUSION
We AFFIRM the custody-modification order because the superior court
applied the correct legal standard in assuming Michael's move to New Jersey would take
place and did not abuse its discretion in weighing the best interest factors.
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