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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Nelson v. Nelson (10/28/2011) sp-6615
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
JUSTIN L. NELSON, )
) Supreme Court No. S-13928
Appellant, )
) Superior Court No. 4FA-07-02361 CI
v. )
) O P I N I O N
ERICA R. NELSON, )
) No. 6615 - October 28, 2011
Appellee. )
)
Appeal from the Superior Court of the State of Alaska,
Fourth Judicial District, Fairbanks, Randy M. Olsen, Judge.
Appearances: Bonnie J. Coghlan, Law Office of Rita T.
Allee, P.C., Fairbanks, for Appellant. Shannon T. Morgan,
Gazewood & Weiner, Attorneys at Law, P.C., Fairbanks, for
Appellee.
Before: Carpeneti, Chief Justice, Fabe, Winfree, Christen,
and Stowers, Justices.
CARPENETI, Chief Justice.
STOWERS, Justice, with whom WINFREE, Justice, joins, dissenting in
part.
I. INTRODUCTION
An Alaskan military couple divorced in 2008. Their agreement for custody
of their two children was incorporated into the divorce decree. The following year, the
father, who anticipated relocating with the military, sought modification of the custody
arrangement. In its order denying modification, the superior court tried to give effect to
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the parties' custody agreement but did not independently analyze the best interests of the
children. Because a substantial change in circumstances occurred, and because a custody
decision must be based on an independent best-interests analysis, we remand this case
for the superior court to undertake a full best-interests inquiry. We also remand for the
superior court to resolve a dispute concerning payment of a custody investigator.
II. FACTS AND PROCEEDINGS
Justin Nelson and Erica Nelson married in 2000 while both were stationed
in England with the U.S. Air Force. Together they had two children, a daughter born in
2001 and a son born in 2005. In 2006, they moved to Eielson Air Force Base near
Fairbanks. The couple separated in 2007 and divorced in 2008.
At a settlement conference in January 2008, Justin and Erica - neither of
whom was represented by counsel at the time - established a Parenting Agreement.
The superior court adopted the terms of the Parenting Agreement in the findings and
conclusions that accompanied their divorce decree. The superior court noted that the
parties had worked "amicably" to resolve some disputes that arose from the divorce.
The Parenting Agreement provided for shared legal custody and equally
divided physical custody on alternate weeks "until one or both parents move from the
Fairbanks area." The agreement further provided:
If in the future the parents don't reside in the same
community, they agree one parent will have the children for
the school year and other parent will have the children for
summers and some school breaks . . . . They agree they will
leave open the possibility if a child asks to live with the other
parent, to consider that request, but no changes of custody
between parents' homes will occur during a school year.
And:
If a parent moves in the future, which the parents agree will
occur eventually, they will have to create a parenting
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----------------------- Page 3-----------------------
agreement for different communities. Until they have that
agreement the children cannot be moved from their current
community. But the children will have visits with the
moving parent during breaks from school . . . .
The record suggests that the parents at first adhered substantially to the terms of their
agreement and resolved minor disputes without court intervention. But some
disagreements required the court's intervention.
In June 2008 Erica lost her job as a surgical technician. About six weeks
later, Erica filed a motion for modification of custody. She proposed moving with both
children to Iowa before the academic year began on August 20, 2008; Erica sought
primary custody with summer visitation for Justin. The court denied this motion on
February 9, 2009. Erica did not appeal this order and apparently abandoned, at least
temporarily, her plan to move to Iowa.
On February 6, 2009, Justin filed a motion for custody modification. (This
motion was not ripe for consideration as of February 9, 2009, when Erica's motion for
modification was denied.) Justin sought primary custody when the parents no longer
resided in the same community. He took Erica's proposed move to Iowa as a change of
circumstances. Justin also suggested that, as a result of his military service, he was likely
to relocate some time after May 2011. Erica opposed the motion, requesting primary
custody regardless of either parent's plans to move; she stated that the "alternate week
schedule has left our children's lives in a constant state of upheaval and is all in all not
working for them."
On Justin's motion, the superior court ordered appointment of Ted Sponsel
as custody investigator. The court reserved for trial the issue of allocating between the
parties the costs of Sponsel's services. Following his investigation, Sponsel
recommended that when one parent moved from Fairbanks, Justin be given custody with
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the caveat that if Justin were deployed for more than three months, custody would revert
to Erica until Justin returned.
Following a two-day trial, the superior court denied Justin's motion for
modification. The order provided:
The court does not find a change of circumstances,
unanticipated by the parties when they signed their Parenting
Agreement in 2008. They anticipated movement by one or
both parents, and agreed that the non-moving parent would
retain custody for the school year.
Nevertheless, the court went on to order that if Justin "moves during the school year,
then [the children] will reside primarily with Erica." The court also ordered entry of a
communication plan between the parties. Neither order mentioned payment for
Sponsel's investigation.
Justin appeals the order denying his motion for modification and argues that
it was error not to address payment for the investigation.
III. STANDARD OF REVIEW
"We exercise our independent judgment when reviewing the legal
interpretation of . . . child custody agreements that are incorporated into divorce
decrees."1 Whether the superior court applied the correct legal standard in its custody
determination 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."2
1 Brown v. Brown, 983 P.2d 1264, 1267 (Alaska 1999).
2 See McQuade v. McQuade, 901 P.2d 421, 423 n.3 (Alaska 1995) (quoting
Cox v. Cox, 882 P.2d 909, 913 (Alaska 1994)).
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----------------------- Page 5-----------------------
IV. DISCUSSION
Justin argues that the superior court: (1) incorrectly interpreted the terms
of the parties' Parenting Agreement, (2) failed to apply the correct legal standard, and
(3) overlooked the issue of allocating costs for the custody investigation. Justin suggests
that the superior court did not modify custody because it found no change in
circumstances to justify modification. Erica characterizes the superior court's order
differently. She argues that the superior court properly awarded her custody after it
concluded that a change of circumstances justified modification and that the children's
best interests justified awarding primary custody to her. We agree with Justin that the
decision should be remanded to the superior court for a best-interests determination.
A. There Has Been A Substantial Change Of Circumstances.
Alaska Statute 25.20.110 authorizes courts to modify child custody and
visitation awards if (1) there has been a substantial change in circumstances that justifies
modification and (2) the modified arrangement is in the best interests of the child.3 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."4 The change in circumstances
"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."5 As we have explained, "the
change in circumstances requirement is intended to discourage continual relitigation of
3 Melendrez v. Melendrez, 143 P.3d 957, 960-61, 963 (Alaska 2006)
(affirming custody modification where both prongs satisfied).
4 Barrett v. Alguire, 35 P.3d 1, 6 (Alaska 2001) (quotingAcevedo v. Liberty,
956 P.2d 455, 457 (Alaska 1998)) (internal quotation marks omitted).
5 Peterson v. Swarthout, 214 P.3d 332, 341 (Alaska 2009) (quoting Jenkins
v. Handel, 10 P.3d 586, 589 (Alaska 2000)).
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----------------------- Page 6-----------------------
custody decisions, a policy motivated by the judicial assumption that finality and
certainty in custody matters are critical to the child's emotional welfare."6
When Justin filed his motion for modification in February 2009, he
suggested that, as a result of his military service, he was likely to relocate some time
after May 2011. Although Justin's relocation may have seemed far away when he filed
the motion for the modification, his anticipated move grew nearer as the superior court
proceedings progressed. By the time the case went to trial, in May 2010, Justin's
relocation constituted a change of circumstances "relative to the facts and circumstances
that existed" at the time the prior custody order was entered. Though the change-of-
circumstances rule is "designed to discourage discontented parents from continually
renewing custody proceedings,"7 parents should not be discouraged from planning ahead
and seeking to modify custody arrangements in advance of an anticipated move. In
numerous cases, we have concluded that an anticipated move satisfied the change-of-
circumstances requirement.8 Indeed, to do otherwise could result in very harsh
consequences for children (for example, if the non-moving parent is actually unfit).
6 Id. at 340-41 (quoting Gratrix v. Gratrix, 652 P.2d 76, 82-83 (Alaska
1982)).
7 Nichols v. Mandelin, 790 P.2d 1367, 1372 (Alaska 1990) (quoting King v.
King, 477 P.2d 356, 360 (Alaska 1970)) (internal quotation marks omitted).
8 See, e.g.,Eniero v. Brekke, 192 P.3d 147, 149-50 (Alaska 2008) (affirming
superior court's decision to modify custody in light of mother's proposed move to
Oregon); Moeller-Prokosch v. Prokosch, 53 P.3d 152, 153, 155 (Alaska 2002)
(instructing courts in custody modification cases to assume a legitimately motivated
move would take place when considering best interests of the child); House v. House,
779 P.2d 1204, 1207-08 (Alaska 1989) (concluding that father's proposed move to
California constituted substantial change of circumstances).
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Justin's anticipated relocation, like Erica's proposed move to Iowa, constituted a
substantial change of circumstances in this case.
B. The Superior Court Must Consider The Best Interests Of The
Children Under AS 25.24.150(c).
Justin demonstrated that a substantial change in circumstances would occur
when he moved out of state. Thus, he has met the threshold requirement for modification
of custody.9 And the superior court must give full consideration to the best interests of
the children before entering an order modifying custody. Alaska Statute 25.20.110(g)
and AS 25.24.150(c) identify nine factors that the superior court must consider in its
best-interests inquiry. The superior court has some leeway in determining what factors
it "considers pertinent."10 Nevertheless, the statute requires the superior court to consider
each of the enumerated factors unless the court concludes, in light of the facts of a
particular case, that certain factors have no bearing on the child's well-being.11 When
we review a custody modification order, we must determine whether the superior court
gave due consideration to each of the pertinent statutory factors. Because the superior
9 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. 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).
10 AS 25.24.150(c)(9).
11 See AS 25.24.150(d) ("In awarding custody the court may consider only
those facts that directly affect the well-being of the child."); S.N.E. v. R.L.B., 699 P.2d
875, 878 (Alaska 1985) ("When a court determines the best interests of the child under
the changed circumstances doctrine, the scope of judicial inquiry is limited to facts
directly affecting the child's well-being." (citing AS 25.24.150(d))); Craig v. McBride,
639 P.2d 303, 306 (Alaska 1982) (instructing superior court to consider mother's
relationship instability only to extent that it adversely affects child or otherwise affects
mother's parenting abilities).
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----------------------- Page 8-----------------------
court in this case found no change of circumstances, it did not address certain statutory
factors, such as the children's needs, each parent's ability to meet those needs, and the
love and affection existing between the children and each parent. Thus, we remand this
case for the superior court to address the statutory best-interests factors, as it deems
necessary, in light of the facts of this case.
C. The Parenting Agreement Does Not Dictate The Terms Of The Post-
Relocation Custody Arrangement.
In determining what custody arrangement is in the children's best interests,
the superior court may properly take account of a custody agreement entered into by the
parents.12 However, a custody agreement cannot be enforced in the face of changed
circumstances, unless the court independently determines, at the time of enforcement,
that its terms are consistent with the best interests of the child.13
The superior court must undertake a new best-interests analysis before
modifying custody in this case. As we understand the order on appeal, the superior court
granted Erica custody "during the school year" in order to give effect to the terms of the
Parenting Agreement. Because this custody modification was not based on a full best-
interests inquiry, we vacate the order granting Erica custody. At most, the terms of the
Parenting Agreement identify the agreed-upon status quo until a final court-approved
arrangement takes effect.
12 See, e.g., McClain v. McClain, 716 P.2d 381, 385 (Alaska 1986) ("The
custody agreement is a pertinent factor because it demonstrates that cooperation between
the parents is possible.").
13 See id.; see also Crane v. Crane, 986 P.2d 881, 887 (Alaska 1999) ("In
making any custody determination - whether following a contested trial or upon the
parties' agreement - the superior court must base its decision on the best interests of the
child.").
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In our view,14 Justin and Erica did not agree upon a final custody
arrangement in the event that one parent relocates. Instead, the agreement states that a
new agreement will need to be reached "[i]f a parent moves in the future." The terms of
the Parenting Agreement provide an interim custody arrangement - that the children
remain with the non-moving parent in Fairbanks - until a final arrangement takes effect.
It will be up to the superior court to determine the permanent custody arrangement that
will be in the children's best interests. If that interim arrangement is not in the best
interests of the children, then the superior court will determine what arrangement is in
the best interests of the children for the duration of the school year and until a substantial
change in circumstances occurs.
D. The Superior Court Must Address Payment Of The Custody
Investigator.
Because we see no indication that the superior court resolved the issue of
allocating the custody-investigation costs, it must decide this issue on remand.
V. CONCLUSION
We VACATE the custody modification order and REMAND the case for
the superior court to consider the best interests of the children and the allocation of
custody investigation costs.
14 Interpretation of a custody agreement presents a question of law, which we
review de novo. See Brown v. Brown, 983 P.2d 1264, 1267 (Alaska 1999) (citing
Cedergreen v. Cedergreen, 811 P.2d 784, 786 n.2 (Alaska 1991)).
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STOWERS, Justice, with whom WINFREE, Justice, joins, dissenting in part.
Justin and Erica Nelson divorced in 2008 and entered into a Parenting
Agreement governing their two children. Their agreement, which was adopted by the
superior court, provided for shared legal and physical custody while both parents lived
near Fairbanks. The agreement also expressly anticipated a move from Fairbanks by one
or both parents, and set forth custody arrangements for that eventuality.
In February 2009, Justin sought modification of custody on the grounds that
he would soon relocate to the continental United States. A hearing was held, after which
the superior court denied Justin's motion to modify custody. The superior court found
that the parties' Parenting Agreement contemplated the upcoming move, and interpreted
the agreement to provide school-year custody to Erica, the non-moving parent. The
court today vacates the superior court's order and remands for a best-interests
assessment. Because I would affirm the superior court's decision, I dissent in part.1
A. The Parties Agreed Upon, And The Superior Court Adopted, The
Parenting Agreement Dictating The Custody Arrangement In The
Event That One Parent Relocates.
In its opinion, the court concludes that "[i]n our view, Justin and Erica did
not agree upon a final custody arrangement in the event that one parent relocates."
In my view, the Nelsons agreed upon precisely this. The Parenting
Agreement anticipated that a parent would move away from Fairbanks and detailed
custody arrangements to take effect in that case. Paragraph 11 of the Agreement states
that "[i]f in the future the parents don't reside in the same community, they agree one
parent will have the children for the school year and the other parent will have the
1 I agree with the court that the issue of payment of the custody
investigator's fees must be remanded for consideration.
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children for summers and some school breaks . . . . [Also,] no changes of custody
between parents' homes will occur during a school year."2 Paragraph 12 goes on to
provide that:
If a parent moves in the future, which the parents agree will
occur eventually, they will have to create a parenting
agreement for different communities. Until they have that
agreement the children cannot be moved from their current
community. But the children will have visits with the moving
parent during breaks from school, as follows, until an
updated agreement is reached:
a. Summers, starting from a week after school is
out until two weeks before school resumes;
b. Alternate winter breaks . . . .
c. Alternate spring breaks . . . .
(Emphasis added.)
The Nelsons contemplated and, in the Parenting Agreement, specifically
prepared for the eventuality that one of the parties would move from Fairbanks. I would
construe their Agreement as the superior court did, namely to provide that in the event
of a move, Justin and Erica "agreed that the non-moving parent would retain custody for
the school year."3
2 Paragraph 11 also references a "#6." Paragraph 6 concerns travel for
church or school activities. Justin asserts that "#6" in fact references a nonexistent
section. In either event, it does not modify the meaning of paragraph 11 as executed.
3 The court relies on the fact that the Parenting Agreement stipulates that a
new agreement will need to be reached if a parent moves from Fairbanks. But the
language in paragraph 12 seems limited to logistical modifications, not to the underlying
premise that custody would stay with the parent in Fairbanks. But even if paragraph 12
is not so limited, the fact that the parents agreed that they would at some point have to
create a new parenting agreement in the future in no way invalidates their agreement that
the nonmoving parent would retain principal custody of the children during the school
(continued...)
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B. There Has Been No Change In Circumstances Warranting Custody
Modification.
The superior court found no change in circumstances because one parent's
move from Fairbanks was not only anticipated but explicitly planned for in the custody
4
agreement. I would affirm the superior court's decision in this regard.
To modify a custody award, "[t]he parent seeking modification must first
establish that there has been a 'significant change in circumstances affecting the child's
best interests.' "5 We have held that as a matter of law, one parent's relocation out of
Alaska constitutes a significant change in circumstances.6 This triggers a hearing on the
children's best interests.7
But we also have stated that a change in circumstances "must be
demonstrated relative to the facts and circumstances that existed at the time of the prior
3 (...continued)
year.
4 The superior court characterized the Agreement as providing that Justin and
Erica "anticipated movement by one or both parents, and agreed that the non-moving
parent would retain custody for the school year."
5 Williams v. Barbee, 243 P.3d 995, 1000 (Alaska 2010) (quoting Ebertz v.
Ebertz, 113 P.3d 643, 647 (Alaska 2005));see also Peterson v. Swarthout, 214 P.3d 332,
340 (Alaska 2009) (quoting J.L.P. v. V.L.A., 30 P.3d 590, 595 (Alaska 2001)) ("Under
AS 25.20.110(a), a court may modify custody only if it finds 'a change in circumstances'
that is 'significant or substantial.' "); House v. House, 779 P.2d 1204, 1207 (Alaska
1989).
6 Barbee, 243 P.3d at 1000 (citing Chesser-Witmer v. Chesser, 117 P.3d 711,
717 (Alaska 2005) (explaining that a change of circumstances "exists as a matter of law
when a custodial parent [including a parent with joint custody] moves out of state")).
7 McQuade v. McQuade, 901 P.2d 421, 424 n.6 (Alaska 1995).
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custody order that the party seeks to modify."8 Here, both parties clearly contemplated
and planned for one parent's move.
Moreover, courts should "avoid disturbing and upsetting [children] with
repeated custody changes."9 "[T]he 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."10 In other words, a custody situation that has been settled - such
as the custody arrangement accompanying an upcoming move - should not be revisited
unless the situation has notably changed, and the parents' mere belief or agreement that
relitigation is necessary is insufficient to trigger modification of an award.11
I would therefore affirm the superior court's conclusion that no change of
circumstances exists sufficient to warrant modification of custody.
8 Peterson, 214 P.3d at 341 (quoting Jenkins v. Handel, 10 P.3d 586, 589
(Alaska 2000)) (internal quotation omitted); see also King v. King, 477 P.2d 356, 359
(Alaska 1970) (quotingHouger v. Houger, 449 P.2d 766, 773 (Alaska 1969) (concluding
that a superior court is "justified in modifying . . . custody arrangements only if it had
been shown that since the date of entry of the judgment changed facts and circumstances
affecting the welfare of the children required modification for the best interests of the
children.").
9 McLane v. Paul, 189 P.3d 1039, 1043 (Alaska 2008) (citing S.N.E. v.
R.L.B., 699 P.2d 875, 878 (Alaska 1985)).
10 Peterson, 214 P.3d at 340-41 (quoting Gratrix v. Gratrix, 652 P.2d 76,
82-83 (Alaska 1982) (internal quotation marks omitted)).
11 See Morino v. Swayman, 970 P.2d 426, 428 (Alaska 1999) (requiring that
the movant prove a substantial change as a threshold to custody modification).
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C. The Superior Court Did Not Err In Enforcing The Parenting
Agreement.
The court notes that the superior court is not bound by the Parenting
Agreement, and concludes that the superior court erred by modifying custody without
undertaking a best-interests analysis.
But the superior court did not modify custody at all - it simply enforced
the parties' existing, court-approved Parenting Agreement. The Nelsons may have
reached their Parenting Agreement by way of settlement and without counsel, but it is
apparent that they worked with the Fairbanks trial court's child custody negotiators to
come to their agreement: these kinds of settlements are encouraged by the legislature and
by this court,12 and the superior court specifically "approved" the Agreement in its
Findings and Conclusions for the divorce.13
Stipulated custody arrangements are of course subject to modification under
the changed circumstances doctrine.14 But in my view it should take more than one
parent's move from Fairbanks - a specific eventuality that the parties contemplated and
planned for - to show a substantial change in circumstances to modify the custody
arrangement set out in this Parenting Agreement.
The court today pays little heed to the parties' agreement, and finds instead
that when parents agree on a custody arrangement that contemplates an upcoming move
12 See Crane v. Crane, 986 P.2d 881, 888-89 (Alaska 1999).
13 It was at that point that if questions about the children's best interests were
raised, the superior court had the discretion to inquire further before adopting and
approving the Agreement. Crane, 986 P.2d at 889.
14 Crane, 986 P.2d at 889 n.4 (citing Garding v. Garding, 767 P.2d 183, 185
(Alaska 1989)).
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- even when this agreement has been explicitly adopted by the superior court - one
parent can still invoke this same upcoming move as a changed circumstance for custody
modification purposes. In my view this conclusion is incorrect, and also stretches the
meaning of "changed circumstance" too far. What is the point of explicitly providing for
foreseeable changes in a custody agreement if the foreseen move will trigger a new best
interests analysis?
D. Conclusion
The Nelsons' Parenting Agreement reflects careful consideration of the
children's best interests in stability; it also expressly contemplates a move by one parent
from Fairbanks and the parties agreed upon custody arrangements when this occurred.
I agree that remand for determination of the custody investigator fee is appropriate, but
because I would affirm the superior court's order declining to modify custody and
enforcing Justin and Erica's Parenting Agreement, I respectfully dissent in part.
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