| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
|
You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Collier v. Harris (9/2/2011) sp-6599
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
BRANWEN COLLIER f/k/a )
MENDEL-GLEASON, ) Supreme Court No. S-13496
)
Appellant, ) Superior Court No. 3AN-06-12452 CI
)
v. ) O P I N I O N
)
WILLIAM AUBREY HARRIS, ) No. 6599 - September 2, 2011
)
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Jack Smith, Judge.
Appearances: Mary A. Gilson and Lori Colbert, Mendel &
Associates, Anchorage, and Karla F. Huntington, The Law
Office of Karla F. Huntington, Eagle River, for Appellant.
David W. Baranow, Law Offices of David W. Baranow,
Anchorage, for Appellee.
Before: Carpeneti, Chief Justice, Fabe, Winfree, Christen,
and Stowers, Justices.
CHRISTEN, Justice.
FABE, Justice, dissenting.
I. INTRODUCTION
Parents agreed to shared physical custody of their daughter, and the
superior court decided that joint legal custody was in the child's best interest. The
mother later filed a motion for modification of joint legal and shared physical custody,
----------------------- Page 2-----------------------
asserting that her work schedule had changed since the parties agreed on a physical
custody schedule, that the father had violated court orders, and that he was not
communicating effectively. The mother sought sole legal and primary physical custody.
The superior court denied the motion without a hearing and awarded attorney's fees to
the father. We affirm the superior court's decision that the mother was not entitled to a
hearing on her motion to modify custody under the circumstances of this case, but vacate
the award of attorney's fees.
II. FACTS AND PROCEEDINGS
A. Proceedings Through Trial
Branwen Collier and William (Will) Harris are the parents of a daughter,
Zada.1 The couple ended their relationship in March 2006 and Branwen filed a
complaint for custody of Zada. Trial was delayed to give the parties an opportunity to
resolve their differences through a settlement conference.
At settlement conferences held in May and July 2007, the parties came to
agreement on several issues, including: child support, daycare, insurance, the schedule
for shared physical custody, the name on Zada's birth certificate, and the parents' means
of communication. At the time of the partial settlement, Branwen was a full-time student
with a flexible schedule during the week and Will worked a conventional Monday
through Friday work week with flexible time on weekends. This was the basis for the
physical custody schedule, which provided for Will to have physical custody of Zada
most weekends and Branwen to have physical custody most weekdays. A number of
issues were not resolved at the settlement conferences, including: legal custody, the
division of Zada's Permanent Fund Dividend, the use of the dependency tax exemption,
1 We use a pseudonym for the daughter to protect her privacy.
-2- 6599
----------------------- Page 3-----------------------
and the start date for Will's child support obligation. The unresolved matters were left
for trial.
In February 2008 the superior court entered a partial custody order
incorporating the terms of the parties' settlement agreement. The order was fairly
detailed on the issue of physical custody, but the issue of legal custody was held in
abeyance for another six months. The superior court established the parties' respective
responsibilities for financially supporting Zada and ordered the parents to engage in co-
parenting counseling to help them improve the effectiveness of their communication with
each other. Trial was scheduled for September 30 and October 1, 2008 on legal custody.
On August 6, 2008, Branwen filed a motion for appointment of a custody
investigator. She claimed the appointment was necessary because "[t]he parties have
little history of communication, and it would be difficult for either party to gather the
necessary information about the other without the assistance of a neutral investigator."
At the same time, Branwen filed a motion for an order to show cause. She claimed that
Will had violated the court's orders to pay child support, pay for daycare, maintain
Denali Kidcare, and allow Branwen reasonable telephone access to Zada. The court
denied Branwen's motion for appointment of a custody investigator but decided to delay
ruling on the motion for an order to show cause until trial.
In September 2008, less than two weeks before trial, Branwen filed a
motion to modify physical custody. Branwen argued that there had been a substantial
change in circumstances since the May and July 2007 settlement conferences. These
claimed changes included the failure of effective communication between the parties,
Will's alleged violations of court orders, and a change in Branwen's schedule due to her
graduation from college and entry into the workforce full-time. The superior court
denied the motion, observing: "[t]he court does not find a substantial change in
circumstances." The court was clear that the scope of the October 2008 trial would be
-3- 6599
----------------------- Page 4-----------------------
limited. The court ruled it would "not revisit the issue of physical custody, support or
other extrinsic matters in the absence of proper motion and due process opportunity to
respond" and "evidence shall not be presented at the trial . . . on modification of physical
custody of the parties' minor child."
Trial was held over two days in October 2008. The court found joint legal
custody to be in Zada's best interest and ordered specific terms for parent communication
to make joint legal custody successful. In addition, the court addressed Branwen's
August motion for order to show cause why Will should not be held in contempt for
violations of the February 2008 custody and support order. The court decided that
Branwen's allegation that Will had not provided reasonable telephone access to Zada
"was not established by a preponderance of the evidence." But the court also found that
Will had not paid his share of Zada's daycare costs. The court attributed this to a
misinterpretation of the earlier order and declined to hold Will in contempt. But the
court did order Will to pay Branwen $270.35 within 30 days for his share of Zada's past
due daycare expenses.
B. Branwen's Post-Trial Motion To Modify Legal And Physical Custody
Branwen filed a motion to modify legal and physical custody on
January 27, 2009, approximately four months after the trial on legal custody. She
supported her motion with three allegations of changed circumstances: (1) the
cooperation and communication anticipated by the court had not occurred; (2) Will
refused to abide by the court's orders; and (3) because she had graduated from college
in May 2008 and was working conventional hours Monday through Friday, the existing
schedule no longer allowed Branwen to have free time with Zada. Branwen's proposed
modification included awarding her sole legal and primary physical custody of Zada,
reducing Will's time with Zada to visitation every other weekend, half of the holidays,
and a vacation period during the summer.
-4- 6599
----------------------- Page 5-----------------------
Will opposed the motion to modify custody, arguing: (1) Branwen's
motion claimed a nominal change in circumstances, including a "unilateral" and
"voluntar[y]" decision to matriculate and graduate from college, which did not rise to the
level required for modification; and (2) Branwen's repeated use of the judicial system
to try to obtain sole custody of their daughter was not in good faith. Will also asked the
court to assess attorney's fees against Branwen for her January 2009 motion. Will
alleged that an award of fees was necessary because "[w]ithout such sanction, the Court,
counsel and [Will] may only expect another motion in a few weeks or at most, months'
time."
The superior court denied Branwen's motion to modify physical and legal
custody without holding a hearing. In its February 19, 2009 order denying the motion,
the court found "[Will's] arguments persuasive," and ordered Branwen to "reimburse
[Will] full/partial attorney fees." Will's counsel was directed to submit an accounting
of fees and costs.
C. Branwen's First Motion For Reconsideration
On February 23, 2009, Branwen filed a motion for reconsideration. The
motion argued that the court ruled on the motion to modify custody before she had the
opportunity to reply to Will's opposition.2 Branwen filed a reply in support of her
motion to modify custody at the same time. The court accepted Branwen's reply and
gave Will a chance to file a response.
On March 10, 2009, Will responded to Branwen's reply. The response
argued that Will was complying with court orders, that custody should not be modified
based on Branwen's own "life choices," and that Branwen's reply "assert[ed] no new
2 The superior court denied Branwen's motion to modify custody on
February 19, 2009, one day before Branwen's reply was due.
-5- 6599
----------------------- Page 6-----------------------
issues or arguments in any particular." After considering the motion papers, the court
again denied Branwen's motion for modification. The court found "the affidavits of
[Will] credible, the arguments of [Will's] Counsel persuasive and no significant change
in circumstances warranting modification of the present custody order in the best interest
of the child." The court confirmed its prior order awarding attorney's fees to Will and
directed Will's counsel to submit an accounting of fees and costs to Branwen and the
court.
D. Branwen's Second Motion For Reconsideration
Branwen filed a second motion for reconsideration almost two weeks later.
It argued the court should have given her a hearing on her motion to modify and that the
court erred by assessing fees against her. The superior court denied this motion as well,
ruling "[a] voluntary decision by one parent to change [her] schedule is not grounds to
modify custody for the other parent." The court further ruled that Branwen's concerns
about Will not following court orders would be better addressed in a motion to enforce
or an order to show cause, which "might be warranted if the [c]ourt found [Will's]
response unpersuasive." The court then wrote: "[g]iven the fairly extensive shared
physical custody arrangement set by the [c]ourt, and the lack of any allegation those
visits are not being complied with, even taking [Branwen's] affidavits as true would not
warrant a change of custody." The order did not specify whether the court was referring
to legal or physical custody; the parties understood the order to refer to both. We agree
with the parties' interpretation.
As to attorney's fees, the superior court found Branwen's motions simply
"a continuation of a dissatisfaction with shared custody," which was still the arrangement
"in the best interests of the child." The court ordered Branwen to pay Will partial
attorney's fees, but explained that the parties' relative financial resources was not the
reason for the award. Rather, Branwen's use of "motion practice to attempt to control
-6- 6599
----------------------- Page 7-----------------------
and abuse [Will]" was what led the court to assess fees. The court found that "[a]bsent
some accountability for repeated motions raising the same issues that have been
previously heard, this [abuse would] likely continue." The court ruled that Branwen's
actions were neither in the best interests of the child nor in good faith.
Branwen appeals the court's denial of her motion to modify custody and
subsequent motions for reconsideration, and the court's award of attorney's fees to Will.
III. STANDARD OF REVIEW
We review de novo whether a moving party has made a prima facie
showing sufficient to justify a custody modification hearing.3
An award of attorney's fees under AS 25.20.115 is subject to reversal only
for abuse of discretion or if the court's factual findings supporting the award are clearly
erroneous.4 We use our independent judgment to determine whether the superior court
applied the law correctly in awarding fees.5
IV. DISCUSSION
A. The Superior Court Did Not Err By Denying Branwen's Motion To
Modify Joint Legal and Shared Physical Custody Without A Hearing.
Branwen filed a motion to modify legal and physical custody on
January 27, 2009. The court denied this motion and declined to change its order in
response to two subsequent motions for reconsideration. In its orders, the court lumped
together Branwen's request to modify legal and physical custody, rather than explaining
its reasons for denying modification of each type of custody. But these two types of
3 Maxwell v. Maxwell, 37 P.3d 424, 425 (Alaska 2001) (quoting Schuyler v.
Briner, 13 P.3d 738, 741 (Alaska 2000)).
4 See Rowen v. Rowen, 963 P.2d 249, 257 (Alaska 1998) (citing Nelson v.
Jones, 781 P.2d 964, 971 (Alaska 1989)).
5 See Boone v. Gipson, 920 P.2d 746, 748 (Alaska 1996).
-7- 6599
----------------------- Page 8-----------------------
6
custody must be analyzed separately; as is true here, the comparative period used to
analyze changed circumstances for one may not be the same as for the other.
A parent seeking a modification of legal custody must make a prima facie
showing of substantially changed circumstances sufficient to justify a modification
hearing.7 The "change in circumstances" requirement is "intended to discourage
continual relitigation of custody decisions, a policy motivated by the judicial assumption
that finality and certainty in custody matters are critical to the child's emotional
welfare."8 "For this reason, the change 'must be demonstrated relative to the facts and
circumstances that existed at the time of the prior custody order that the party seeks to
modify.' "9 A parent seeking to modify physical custody must also demonstrate that a
substantial change in circumstances has taken place since the last custody order was
entered.10
Here, legal custody was established by court order after the October 2008
trial. Branwen filed her motion to modify on January 27, 2009. Therefore, the correct
comparison for determining whether there had been a substantial change in
circumstances for legal custody purposes is a comparison of the circumstances as they
6 See D.J. v. P.C., 36 P.3d 663, 670 n.26 (Alaska 2001) (" 'Legal custody'
refers to the responsibility for making 'major decisions affecting the child's welfare' and
is a status that may be held by a parent who does not have 'physical custody,' which
refers to the responsibility for physical care and immediate supervision of the child."
(quoting Bennett v. Bennett, 6 P.3d 724, 726 (Alaska 2000))).
7 Hunter v. Conwell, 219 P.3d 191, 195-97 (Alaska 2009).
8 Peterson v. Swarthout, 214 P.3d 332, 340-41 (Alaska 2009) (internal
citations and quotation marks omitted).
9 Id. (quoting Jenkins v. Handel, 10 P.3d 586, 589 (Alaska 2000)).
10 Hunter, 219 P.3d at 195-97; see also Peterson, 214 P.3d at 340-41.
-8- 6599
----------------------- Page 9-----------------------
existed in October 2008 to the circumstances as of January 27, 2009. Physical custody
was agreed to by the parties in their 2007 settlement discussions, though the court
memorialized the parties' physical custody schedule in February 2008. The correct
comparison of circumstances for physical custody purposes is the circumstances as they
existed in July 2007 and the circumstances as they existed when the January 27, 2009
motion was filed.
1. The parties' competing affidavits
In her motion to modify custody, Branwen alleged two circumstances that
went to the heart of legal custody: (1) a failure of communication between the parties;
and (2) Will's refusal to honor court orders regarding co-parenting counseling, use of
email, and telephone access to Zada. Branwen also claimed a change in her post-
graduation work schedule in support of modifying physical custody. In its
February 19, 2009 order denying Branwen's motion to modify custody, the only
explanation the superior court gave was that it found "[Will's] arguments persuasive."
The court gave minimal further explanation when it issued its order on Branwen's
motion for reconsideration, adding that it found "the affidavits of [Will] credible" and
"no significant change in circumstances warranting modification of the present custody
order." In its order on Branwen's second motion for reconsideration, the court explained
that "[t]he . . . issues raised by [Branwen] as to telephonic and e-mail contact and co-
parenting classes go to enforcement of current [c]ourt orders." The superior court
explained that the appropriate remedy for enforcement problems would be a motion to
enforce or an order to show cause. But in the same sentence, the court wrote that these
types of motions would be warranted if "the [c]ourt found [Will's] response
unpersuasive." As explained, the court's original order denying the motion to modify
made clear that the superior court found "[Will's] arguments persuasive."
-9- 6599
----------------------- Page 10-----------------------
Branwen argues that the superior court's statements, taken together, imply
that "any motion to enforce would be fruitless." She also argues that the court attempted
to "resolve factual issues by making credibility determinations based on the affidavits the
parties filed, which is not permissible." We agree with Branwen that the superior court's
decision is troubling on these grounds.
First, the court's order is problematic because it overlooks Branwen's
contention that her motions appear to have been what motivated Will to comply with the
court's orders, such as scheduling a counseling appointment for himself and a dentist
appointment for Zada. There is at least some support for this contention: at the
conclusion of the October 2008 trial, the superior court found Will failed to comply with
a court order due to a misunderstanding of what daycare costs he was required to pay.
It was Branwen's order to show cause that led the court to clarify this requirement, and
to enforce it.
The second reason the court's order is problematic is because the court
weighed Will's credibility when determining whether a hearing was warranted on the
motion to modify custody. In its order denying Branwen's motion to modify, the court
wrote that it "finds [Will's] arguments persuasive" and, in its order on the motion for
reconsideration, the court elaborated that it found "the affidavits of [Will] credible [and]
the arguments of [Will's] Counsel persuasive."
Branwen argues the court should not have made credibility determinations
based on the parties' affidavits. Will responds that "a court can deny a motion to modify
custody or visitation, without holding a hearing, based solely on the pleadings or after
considering material beyond the pleadings - e.g., affidavits."11 But we held in C.R.B.
11 C.R.B. v. C.C., 959 P.2d 375, 378 (Alaska 1998), overruled on other
grounds by Evans v. McTaggart, 88 P.3d 1078 (Alaska 2004).
-10- 6599
----------------------- Page 11-----------------------
v. C.C. that granting or denying a motion to modify custody without a hearing is akin to
making a determination on summary judgment;12 and we have cautioned that courts
should not weigh witness credibility on summary judgment.13
Here, Will alleges that the superior court was justified in judging the
affidavits' credibility because the court had "multiple, extended opportunities to not only
review and assess Branwen's many affidavits, but also to view her conduct and
demeanor and to assess her credibility in trial and in hearing after hearing." We have
never directly addressed this issue, but other jurisdictions have recognized that a court's
familiarity with a case can sometimes allow it to make credibility determinations without
taking additional testimony.14 There may be circumstances where a party's repetitious
use of the judicial system over a short time period without new allegations would allow
a trial court to make a credibility determination on written filings, but this is not such a
case. Here, the parties' affidavits contained directly conflicting information regarding
the reasons for ongoing failures in communication and cooperation. Physical custody
had not been addressed since July 2007, the court had never decided physical custody
in a contested setting, and Branwen had filed only two motions to modify physical
custody in the entire history of the case. Filing a second motion to modify does not
constitute repetitious use of the judicial system such that Branwen should be denied her
12 Id.
13 Cabana v. Kenai Peninsula Borough, 50 P.3d 798, 801 (Alaska 2002);
Broderick v. King's Way Assembly of God Church, 808 P.2d 1211, 1216 (Alaska 1991)
("Credibility is a factual issue . . . properly determined by the factfinder at trial, not a
matter of law determined by the court in summary judgment."). But see Iverson v.
Griffith, 180 P.3d 943, 946 (Alaska 2008) ("[A] trial court is not required to grant a
hearing . . . if the allegations of changed circumstances are convincingly refuted by
competent evidence." (quoting Maxwell v. Maxwell, 37 P.3d 424, 426 (Alaska 2001))).
14 See, e.g., Burckett v. State, 704 So. 2d 1266, 1268 (La. App. 1997).
-11- 6599
----------------------- Page 12-----------------------
day in court. In fact, it appears that the only time Branwen testified before the superior
court was at the October 2008 trial.15 The October 2008 trial did not include arguments
or evidence about modifying physical custody because the superior court had ruled that
"evidence shall not be presented . . . on modification of physical custody of the parties'
minor child." Under these circumstances, the superior court's credibility determinations
were premature.
Although we conclude that the superior court erred in its reasons for
denying Branwen a hearing, our analysis does not end here. We review de novo whether
a party has a made a prima facie showing sufficient to justify a modification hearing; in
this case we independently conclude that Branwen failed to make a sufficient showing.
2. Branwen did not allege a sufficient change in circumstances to
warrant a hearing on modifying joint legal custody.
When deciding whether a party is entitled to a hearing on a motion to
modify custody, we review the record and arguments de novo to determine whether the
party alleged facts which, if true, demonstrate a substantial change in circumstances.16
In so doing, we take the moving party's allegations as true.17
In support of her motion for sole legal custody, Branwen claimed that
communication between the parties had not improved and that Will was failing to
comply with court orders. Regarding the first allegation, we have held "joint legal
custody is only appropriate when the parents can cooperate and communicate in the
15 Branwen's prior motions were denied without a hearing and the 2007
settlement conferences were conducted by a different judge.
16 Maxwell, 37 P.3d at 425 (quoting Schuyler v. Briner, 13 P.3d 738, 741
(Alaska 2000)).
17 C.R.B., 959 P.2d at 378.
-12- 6599
----------------------- Page 13-----------------------
child's best interest."18 Here, the superior court's decision to award joint legal custody
was based on an assumption that "once the litigation goes away there's a pretty good
indicator that the parents are going to focus on the best interest of the child at that point
in time, and hopefully put their personal conflicts aside." Branwen argues that the
parties' communication did not improve after the October 2008 trial on legal custody,
but the record reflects the parents were communicating, at least to the extent that they
were able to facilitate shared physical custody by exchanging weekly, if not daily,
emails.
Email communication between two parents may not be optimal, but the
superior court specified that the parents were to use email, implying that this mode of
communication was at least minimally functional for facilitating shared custody.19 We
have observed that "sustained noncooperation by one parent may constitute sufficiently
changed circumstances to justify terminating joint legal custody,"20 but less than four
months had elapsed after the trial on legal custody and the parties were exchanging
emails regularly. Under these circumstances, the "lack of communication and
cooperation" alleged by Branwen does not rise to the level of "sustained noncooperation"
sufficient to justify modifying legal custody.21
18 Jaymot v. Skillings-Donat, 216 P.3d 534, 540 (Alaska 2009) (quoting
Farrell v. Farrell, 819 P.2d 896, 899 (Alaska 1991)).
19 Cf. id. (holding that shared legal custody was not in the child's best interest
because the mother "refuses to speak with the father and fails to promote
communication").
20 Peterson v. Swarthout, 214 P.3d 332, 341 (Alaska 2009) (internal citations
and quotation marks omitted).
21 Id.
-13- 6599
----------------------- Page 14-----------------------
Branwen also alleged that Will was not complying with court orders, an
allegation that must receive serious consideration by the superior court. Here, the
superior court issued an order notifying Branwen that the non-compliance she
complained of would be better addressed as a motion to enforce or order to show cause,
rather than a motion to modify custody. We have said "[w]here one party fails to comply
with a court order, the appropriate use of judicial intervention is to seek an order
directing the non-compliant party to comply."22 This response to initial complaints of
non-compliance with child custody orders has the advantage of providing a remedy
without risking disruption to the child. The preference for motions seeking compliance
over motions to modify custody stems from our "deep reluctance to shuttle children back
and forth between parents."23 Further, alleged violations of court custody orders do not
necessarily constitute grounds for modification,24 although they certainly can if the
violations are continuous, repetitious, or egregious.
Peterson v. Swarthout proves a good example.25 There, the mother filed a
motion to modify legal custody based on the father's alleged violations of court orders
three months after the court had entered an order on legal custody.26 The alleged
violations included: removing the child from counseling, failing to protect the child from
being bitten by a three-year-old half-brother, failing to communicate, scheduling more
22 Id. at 341 n.28 (citing Vachon v. Pugliese, 931 P.2d 371, 378-79 (Alaska
1996)).
23 Harrington v. Jordan, 984 P.2d 1, 4 (Alaska 1999) (quoting C.R.B. v. C.C.,
959 P.2d 375, 381 (Alaska 1998)).
24 Peterson, 214 P.3d at 341 n.28 (citing Vachon, 931 P.2d at 378-79).
25 Id. at 332.
26 Id. at 340.
-14- 6599
----------------------- Page 15-----------------------
time with the child on holidays and special days than allowed by the custody order,
failing to schedule an annual physical checkup for the child, and questioning the child
about time spent with the other parent.27 We held that these instances of non-compliance,
occurring over a three-month period, "did not effect a 'significant or substantial' change
in circumstances," although they could warrant an order forcing compliance with the
custody arrangement.28 Branwen alleged that Will violated the court order by failing to:
(1) email effectively; (2) schedule counseling appointments; (3) allow Branwen
telephonic contact with Zada when Zada was in Will's custody;29 and (4) pay his share
of the daycare bills. While continual violation of these orders may warrant a hearing -
or even a modification of legal custody - in the future, we conclude that these
allegations had not yet risen to the level of a substantial change in circumstances as of
the time Branwen filed her motion to modify legal custody. We affirm the superior
court's ruling that Branwen was not entitled to a hearing on the motion to modify joint
legal custody.
Our decision today does not mean that Branwen's allegations are
insignificant; we only decide that the alleged violations did not warrant a hearing on
modification of joint legal custody four months after the order was established. If
Branwen alleges that Will continues to demonstrate non-compliance over a more
27 Id.
28 Id. at 341 n.28.
29 In support of this allegation, Branwen cites an instance when she could not
contact Zada, who was with Will for a week over the Christmas holiday. Will admits
that Zada did not talk to Branwen for four days, but claims that it was because he
accidentally washed his cell phone in the washing machine.
-15- 6599
----------------------- Page 16-----------------------
extended period of time, or in additional ways, a future motion to modify may allege a
sufficient change in circumstances to warrant a hearing.30
3. Branwen did not allege a sufficient change in circumstances to
warrant a hearing on modifying shared physical custody.
a. One parent's unilateral change can warrant a hearing on
a motion to modify shared physical custody; a parent
does not need to show violation of a custody order to
receive a hearing.
Branwen also contends that she made a prima facie case sufficient to
warrant a hearing on her motion to modify shared physical custody. In support of this
motion, Branwen alleged that since the time of the last physical custody order she
graduated from college, gained full-time employment, and started evening classes to
work toward her master's degree. Branwen claimed that "[a]t the time of the [stipulated
2007 custody] agreement, Will worked a Monday through Friday schedule, while [she]
worked weekends and went to school during the week." Because of her changed
circumstances, Branwen was working Monday through Friday and taking classes two
workday evenings per week when she moved to modify custody. She claimed that the
time she had to spend with Zada had been substantially reduced as a result of these
changes.
The superior court rejected Branwen's claim that a substantial change in
circumstances had occurred with respect to physical custody and it made this ruling
without holding a hearing. The court ruled that "[a] voluntary decision by one parent to
change their schedule is not grounds to modify custody for the other parent." It added
that "[g]iven the fairly extensive shared physical custody arrangement set by the [c]ourt,
30 See, e.g., Peterson, 214 P.3d at 341 n.30.
-16- 6599
----------------------- Page 17-----------------------
and the lack of any allegation those visits are not being complied with, even taking
[Branwen's] affidavits as true would not warrant a change of custody."
Branwen contends that her allegations of changed circumstances warranted
a hearing. She claims that the superior court's conclusion that "[a] voluntary decision
by one parent to change their schedule is not grounds to modify custody for the other
parent" is unsupported by law. We agree with Branwen that the superior court's analysis
was flawed in two respects. First, the court's ruling that a parent's unilateral decision to
change his or her schedule cannot warrant modification is not consistent with our case
law. For example, in Iverson v. Griffith we held that a hearing to modify custody was
necessary because the father had new employment that required him to be away from
home for two-week periods.31 This was certainly a "unilateral" change in the sense that
it did not involve the mother, and nothing suggested it was an involuntary change in
employment. To the contrary, decisions to accept new employment or to move one's
residence typically are unilateral and voluntary, and our case law is clear that these
changes can form the basis for custody modification.32 The key inquiry is whether the
change is significant enough to warrant the disruption inherent in changing a child's
31 Iverson v. Griffith, 180 P.3d 943, 946 (Alaska 2008).
32 See, e.g., Barrett v. Alguire, 35 P.3d 1, 6 (Alaska 2001) ("[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." (internal quotation marks and citations omitted)).
-17- 6599
----------------------- Page 18-----------------------
custody schedule or routine,33 not whether the changed circumstance is "unilateral" or
"voluntary."
Second, the superior court's order might be interpreted as suggesting that
Branwen was not entitled to a custody modification because she did not allege that Will
was not complying with the court's physical custody schedule. The court wrote: "Given
the fairly extensive shared physical custody arrangement set by the [c]ourt, and the lack
of any allegation those visits are not being complied with, even taking [Branwen's]
affidavits as true would not warrant a change of custody." We have never held that one
party must be in violation of the physical custody order for the court to modify legal or
physical custody. Nor have we held that compliance with an existing physical custody
schedule is dispositive of the question whether there has been a change in circumstances.
The superior court erred when it ruled that a voluntary change in
employment cannot be the basis of finding a substantial change in circumstances and that
Branwen was not entitled to a hearing because Will was complying with the physical
custody order, but because we independently determine that Branwen was not entitled
to a hearing on her motion to modify shared physical custody, this error was harmless.
b. Branwen's changed schedule did not warrant a hearing
on modifying the percentage of physical custody time
each parent receives.
To determine whether Branwen was entitled to a hearing on modification
of shared physical custody, we compare the circumstances as they existed at the time of
33 Id. at 5-6, 10; see also Peterson, 214 P.3d at 340-41 (There is a "judicial
assumption that finality and certainty in custody matters are critical to the child's
emotional welfare." (internal quotation marks and citations omitted)); Harrington v.
Jordan, 984 P.2d 1, 4 (Alaska 1999) ("[C]ommentators have noted the counterproductive
effect of unnecessary litigation on all parties, including children." (internal citation
omitted)); cf. Melendrez v. Melendrez, 143 P.3d 957, 962-63 (Alaska 2006) (discussing
a child's need for stability and continuity in custody arrangements).
-18- 6599
----------------------- Page 19-----------------------
the last order on physical custody to the circumstances Branwen alleged when she filed
her motion to modify custody in January 2009.34
Branwen's primary allegation was that her transition from college into the
full-time workforce and master's degree program severely restricted the amount of time
she had with Zada. When the parties agreed to physical custody in 2007, Branwen was
a full-time student with a flexible schedule during the week and Will worked a
conventional Monday through Friday schedule with flexible time on weekends. The
parties agreed to allocate most of Zada's weekend time to Will and most of her weekday
time to Branwen. By the time Branwen filed her motion to modify physical custody in
January 2009, both parties were working typical work-week schedules and Branwen was
taking classes two evenings during the week. Branwen argued that this change affected
how much time Zada was able to spend with Branwen, and that "[i]t would be much
better for [Zada] if she spent a more equal share of her free time with each parent so she
can have family activities with each of [them]."
But Branwen's January 27, 2009 motion sought more than a reallocation
of Zada's weekend time. The motion asked the superior court to grant her sole legal
custody and primary physical custody, with a dramatically reduced physical custody
schedule for Will. We agree with the superior court that no hearing on this motion was
necessary because, taking her allegations as true, Branwen did not make a prima facie
showing that her post-graduation schedule justified a change to primary physical
custody.
We have said that a lesser showing is required for a "change in
circumstances" determination when a parent seeks to modify visitation rather than
34 Peterson, 214 P.3d at 340-41 (quoting Jenkins v. Handel, 10 P.3d 586, 589
(Alaska 2000)).
-19- 6599
----------------------- Page 20-----------------------
custody.35 Here, if Branwen had sought modification of the custody schedule only, and
not modification of the percentage of time each parent had with the child, a lesser change
in circumstances would have been required to entitle her to a hearing. A similar situation
was presented in Havel v. Havel, where the superior court awarded each parent 50%
custody, and left it to the parents to determine a custody schedule.36 When the parties
could not agree to a schedule, the superior court imposed one, but in the process the court
changed the percentage allocation from 50/50 to 60/40.37 We upheld the decision to set
a schedule, but also held it was an abuse of discretion to change the percentage of time
each parent had with the child because the superior court made no findings explaining
why modifying the custody arrangement was in the child's best interests.38 Our decision
reflected the higher showing required to modify the percentage of time each parent
receives in a shared custody situation, as compared to the lesser standard required for
modifying a custody schedule.
Branwen's January 2009 motion to modify physical custody specifically
requested that the court "grant her physical custody of [Zada], with Will to have
visitation every other weekend and half the holidays, and a vacation period during the
summer." The parties' prior agreement gave Will roughly 50% physical custody of
Zada. On its face, Branwen's request sought primary physical custody and a reduction
of the percentage of time Will had physical custody of Zada, not just the schedule when
35 Havel v. Havel, 216 P.3d 1148, 1151 n.6 (Alaska 2009). In the past this
court has used the term "visitation" to mean "custody schedule" in the context of a
shared physical custody arrangement. See, e.g., id. at 1151-53.
36 Id. at 1150.
37 Id. at 1153.
38 Id. at 1151-53.
-20- 6599
----------------------- Page 21-----------------------
he had custody. Branwen's motion did not mention or suggest simply modifying the
existing custody schedule to more equally allocate weekend time. To the contrary,
Branwen's request sought primary physical custody, with Will's time being reduced to
visitation every other weekend.
Branwen had experienced family law counsel representing her. It is
possible Branwen only hoped to gain a more equal allocation of weekend time, but we
cannot say the superior court erred by failing to speculate as to what relief she sought;
the court was obliged to rule only on the relief Branwen requested.39 Further, Branwen's
briefing before this court does not allege that the superior court misunderstood her
request; rather, her appeal focuses entirely on whether she has met the requisite threshold
for a hearing on modifying shared physical custody. The cases she cites are all instances
of parents seeking to change the amount of time each parent had custody of the child, not
just modification of the custody schedule.40 An appellant must at least raise an issue
39 Cf. Alaska R. Civ. P. 7. ("An application to the court for an order . . . shall
set forth the relief or order sought.").
40 See Hunter v. Conwell, 219 P.3d 191, 192-94 (Alaska 2009) (mother sought
primary physical custody when father had primary physical custody); Iverson v. Griffith,
180 P.3d 943, 945 (Alaska 2008) (mother sought shared physical custody when father
had primary physical custody); Barile v. Barile, 179 P.3d 944, 945 (Alaska 2008)
(mother sought primary physical custody when parents had shared physical custody).
-21- 6599
----------------------- Page 22-----------------------
before our court to secure review.41 We therefore affirm the superior court's denial of
Branwen's motion to modify shared physical custody without a hearing.42
B. The Award Of Fees Was An Abuse Of Discretion.
The superior court awarded fees to Will because it found that Branwen was
"using motion practice to attempt to control and abuse [Will]. Absent some
accountability for repeated motions raising the same issues that have been previously
heard, this will likely continue."
There are three types of attorney's fee standards germane to child support
and custody cases: (1) initial custody and child support determinations (the "divorce
exception to Rule 82"); (2) postjudgment child support modification and enforcement
proceedings (Rule 82); and (3) proceedings to modify custody/visitation
41 Alderman v. Iditarod Props., Inc., 104 P.3d 136, 145-46 (Alaska 2004)
(noting that, aside from plain error, issues neither argued before trial court nor included
in opening brief before this court "[are] deemed abandoned" (citing In the Matter of
H.C., 956 P.2d 477, 480 n.7 (Alaska 1998)); see also Int'l Seafoods of Alaska, Inc. v.
Bissonette, 146 P.3d 561, 569 (Alaska 2006) (deeming issue waived for failure to
adequately brief point before this court).
42 Nothing in this decision should be read to suggest that future motions by
Branwen will necessarily fail or succeed; we simply hold that Branwen's changed
schedule did not warrant modifying the percentage of time each parent has physical
custody of Zada. If Branwen believes the schedule for sharing 50/50 custody should be
adjusted based on her changed work schedule, she may file a motion to modify the
custody schedule.
-22- 6599
----------------------- Page 23-----------------------
(AS 25.20.115).43 Although the superior court never explicitly stated the authority it
relied upon to award fees, we assume it was AS 25.20.115.44 That statute provides:
In an action to modify . . . an order providing for custody of
a child . . . the court may, upon request of a party, award
attorney fees and costs of the action. In awarding attorney
fees and costs under this section, the court shall consider the
relative financial resources of the parties and whether the
parties have acted in good faith.
1. Alaska Statute 25.20.115 requires findings on the parties'
relative financial resources and good faith.
We have previously held that "in making an award of attorney's fees and
costs under AS 25.20.115, a court must make explicit findings as to the parties' relative
financial resources and whether the parties acted in good faith."45 The parties' relative
financial resources do not need to take primacy over the presence or absence of good
faith, but AS 25.20.115 still requires the court to make findings on both factors.46
Regarding relative financial resources the superior court explained:
Although the court is unaware as to whether Plaintiff is
paying for the legal services she is receiving from her
mother's law firm, relative financial resources was not the
driving factor in awarding Defendant attorney's fees. . . . The
43 See Rowen v. Rowen, 963 P.2d 249, 257 (Alaska 1998) (proceedings to
modify custody/visitation); Bergstrom v. Lindback, 779 P.2d 1235, 1238 (Alaska 1989)
(initial custody and support determination); and Patch v. Patch, 760 P.2d 526, 531
(Alaska 1988) (postjudgment child support modification and enforcement proceedings).
Because Branwen's motion falls into the category of "proceedings to modify
custody/visitation," attorney's fees are governed by AS 25.20.115.
44 The parties briefed and argued the fee award under this statute.
45 S.L. v. J.H., 883 P.2d 984, 985 (Alaska 1994).
46 Id. at 985-86.
-23- 6599
----------------------- Page 24-----------------------
relative resources of the parties is not controlling under these
circumstances.
In other words, the superior court made clear that it did not know the parties' relative
financial resources, nor did it take these resources into account, when it awarded fees.
Branwen argues that the superior court was required to consider her relative
financial resources before awarding fees against her. Will argues that under Rodvik v.
Rodvik47 a superior court may make an implied finding regarding the parties' relative
resources by considering the record itself. Will's argument is unpersuasive for two
reasons. First, Rodvik concerned the award of fees under AS 25.24.140 - a statute that
guides fees in divorce proceedings, not custody modification disputes.48 Second, there
is no basis for our court to conclude that the superior court made an implicit finding
regarding the parties' relative financial resources; to the contrary, it appears the superior
court could not have done so because the record does not contain information regarding
Branwen's financial status. We conclude that Rodvik is not controlling, and that
AS 25.20.115 required the superior court to consider and make explicit findings about
the parties' relative financial resources before awarding fees. The court's failure to do
so was error. On remand, the superior court must make explicit findings about the
parties' relative financial resources and how this influences its fee award.
47 151 P.3d 338, 352 (Alaska 2006).
48 A court's fee analysis under AS 25.20.115 is different than that under
AS 25.24.140. See S.L., 883 P.2d at 985-86.
-24- 6599
----------------------- Page 25-----------------------
2. It was error to expand the scope of the fee award without notice.
A trial court's discretion in awarding attorney's fees is broad, but we will
find an abuse of discretion if the award is "arbitrary, capricious, manifestly unreasonable,
or stems from an improper motive."49
In its original order awarding Will attorney's fees, the superior court
directed Will's counsel to "submit an accounting of fees and costs to respond to
[Branwen's] motion [to modify custody]." The court limited its award to the fees and
costs incurred in responding to the motion Branwen filed on January 27, 2009. But, as
Branwen points out, the court ultimately approved Will's attorney's fee and cost
accounting, which included fees incurred between the October 2008 trial and the January
2009 motion. The court implicitly expanded its award to include fees incurred in all
post-trial briefs, and it did so without giving notice of its intent or providing Branwen an
opportunity to address the expanded scope of fees. This was an abuse of discretion and
we must therefore reverse the award of fees and costs.50
V. CONCLUSION
For the reasons discussed above, we AFFIRM the superior court's denial
of Branwen's motion to modify legal and physical custody without a hearing. We
VACATE the fee award and REMAND to the superior court for further proceedings
consistent with this opinion.
49 Zimin v. Zimin, 837 P.2d 118, 124 (Alaska 1992) (citations omitted).
50 The expansion in the scope of the fee award raises due process concerns
because Branwen did not have an opportunity to be heard on this issue of consequence.
See Smith v. Groleske, 196 P.3d 1102, 1106 (Alaska 2008).
-25- 6599
----------------------- Page 26-----------------------
FABE, Justice, dissenting.
Today the court affirms the superior court's decision that Branwen was not
entitled to a hearing on her motion to modify custody. I agree with the court that there
was no need for a hearing regarding modification of legal custody. But because
Branwen did show a sufficient change of circumstances based on changes in her work
and school schedule, I would remand the case for a hearing and determination of whether
there should be modification of the parties' shared physical custody schedule, also
referred to as the visitation schedule.
Branwen requested modification of both legal and physical custody based
on three alleged changed circumstances. Two of her allegations were related to Will's
conduct. But apart from her allegations regarding Will's conduct, Branwen argued that
the current visitation schedule had become "even more problematic because of [her]
work and school schedule." Branwen noted that the current schedule allowed her only
one weekend with Zada each month. She explained that the parties had agreed to this
schedule at a time when she was still in school and worked on weekends, but that
because she had changed to a normal weekly work schedule, "[t]here is no longer any
reason why Will should have more non-work time with [Zada] than her mother should."
Branwen added that she "now has classes for her Master's degree on two of her scarce
evenings with [Zada]" and that she thought it "highly unlikely" that Will would agree to
change scheduled evenings to allow Branwen an additional "free" evening with Zada.
Finally, Branwen noted that because "Will takes no responsibility for things like the
dental appointments during his time with [Zada,] [a]ll the mundane, necessary tasks must
be done on Branwen's time."
The trial court expressly stated that it was denying Branwen a hearing on
the issue of physical custody based on its view that Branwen's unilateral job and school
schedule changes could not provide support for a change in physical custody. As the
-26- 6599
----------------------- Page 27-----------------------
court explains, this view was erroneous because "our case law is clear that [unilateral and
voluntary] changes can form the basis for custody modification."1 But the court excuses
the trial court's error as harmless because Branwen's motion "sought more than a
reallocation of . . . time" and Branwen did not show that her changed schedule justified
a modification of physical custody.2
It is true that Branwen requested a change in the physical custody
arrangement that would have given her a larger percentage of time with Zada than Will;
such a request would require a heightened changed circumstances burden.3 But physical
custody has two components - (1) the allocation of the percentage of time that each
parent has custody of the child, and (2) the schedule of where the child resides at a
particular time.4
Here, even if Branwen's allegations as a whole were not sufficient to justify
a change in the percentage of time she had physical custody, the separate question
whether Branwen's changed schedule justified a change in how the shared custody time
was scheduled, in other words, a change in the visitation schedule, remained, and that
1 Slip Op. at 17-18.
2 Slip Op. at 18-19.
3 The court allows that "if Branwen had sought modification of the custody
schedule only . . . a lesser change in circumstances would have been required to entitle
her to a hearing. Slip Op. at 20. See also Havel v. Havel, 216 P.3d 1148, 1151 n.6
(Alaska 2009).
4 I recognize that Branwen requested modification of both of these
components, and I do not believe that Branwen "only hoped to gain a more equal
allocation of weekend time." Slip Op. at 21. But in my view a party is not required to
choose between these two forms of relief in requesting modification of physical custody.
-27- 6599
----------------------- Page 28-----------------------
discrete issue merited a hearing.5 Put another way, the arguments in Branwen's motion
established her entitlement to a hearing and review of the visitation schedule, even if the
percentages remained even and physical custody remained shared. Because it is the
child's best interests that are at stake, I do not favor the court's technical reading of the
motion and implied conclusion that Branwen was required to frame an express stand-
alone or alternative argument that a new visitation schedule was necessary.6
Because the basis for the parties' original physical custody schedule was
the flexible weekday schedule Branwen had as a student, her schedule change to full-
time employment was a sufficient change of circumstances to warrant a hearing on her
motion to modify physical custody to the extent she requested a change in the
arrangement of shared physical custody. And Branwen's express argument that her
revised work and school schedule, which left her with only one weekend a month with
Zada, caused the custody arrangement to be "even more problematic" placed the issue
of the visitation schedule squarely before the superior court. I would remand the case
for a hearing on the parties' visitation schedule and I therefore respectfully dissent.
5 Even if a trial court denies a parent's motion to modify legal and physical
custody based on changed circumstances, the trial court may modify the parents'
visitation schedule to accommodate those changed circumstances. See Pearson v.
Pearson, 5 P.3d 239, 242 (Alaska 2000).
6 Slip Op. at 20-22.
-28- 6599
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
