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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Steven D. v. Nicole J. (8/16/2013) sp-6812
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
STEVEN D., )
) Supreme Court No. S-14792
Appellant, )
) Superior Court No. 3AN-01-12605 CI
v. )
) O P I N I O N
NICOLE J., )
) No. 6812 – August 16, 2013
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Mark Rindner, Judge.
Appearances: John C. Pharr, Law Offices of John C. Pharr,
Anchorage, for Appellant. Phyllis Shepherd and Stephanie
Patel, Law Offices of Dan Allan and Associates, Anchorage,
for Appellee.
Before: Fabe, Chief Justice, Stowers, Maassen, and Bolger,
Justices. [Winfree, Justice, not participating.]
FABE, Chief Justice.
I. INTRODUCTION
A woman living in Alaska filed a petition in Alaska to enforce summer
visitation with her son, who lives in Tennessee with his father. After the superior court
resolved the visitation issue, the father appealed, arguing that the superior court lacked
jurisdiction to hear the case or, in the alternative, that the superior court should have
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voluntarily ceded jurisdiction to Tennessee because Alaska is an inconvenient forum.
We conclude that the superior court had jurisdiction to hear the case and did not abuse
its discretion by deciding that Alaska is not an inconvenient forum.
II. FACTS AND PROCEEDINGS
Steven D. and Nicole J.1 were married in 1994 in Fairbanks and have two
children, Christopher and Warren. After seven years of marriage, Steven filed a petition
for a protective order against his wife in Alaska, alleging that Nicole had physically
attacked him and Christopher, and that Nicole had disappeared with the children for
weeks at a time. Two weeks later, Steven filed a divorce complaint in superior court in
Alaska.
The superior court found that Nicole represented a credible threat to the
physical safety of Steven and the children and granted Steven’s petition for a protective
order. In 2004, after litigating the divorce action in Alaska for several years, Steven and
Nicole reached a settlement granting Steven joint legal custody and primary physical
custody of the children in Tennessee, where he had since moved. During the summer
and at other specified times, the children were to fly to Alaska to visit Nicole. The
settlement agreement was approved by the superior court in March 2004.
In May 2012 Nicole filed a motion in Alaska to enforce visitation, claiming
that Steven had refused to surrender the children for summer visitation when she flew
to Tennessee to collect them. The next day, a Tennessee circuit court issued an ex parte
order exercising temporary emergency jurisdiction over the children and preventing the
children from being removed from Steven’s care until either the Tennessee circuit court
or the superior court in Alaska had conducted a full hearing. Steven filed an opposition
1 To protect the family’s privacy, we use initials instead of full last names.
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to Nicole’s motion to enforce visitation in Alaska and moved to transfer jurisdiction over
the proceedings to Tennessee.
In June 2012 the superior court in Alaska held a hearing on the motion to
2
enforce visitation as to Warren. The superior court found that it had continuing and
exclusive jurisdiction over the case under the Uniform Child Custody Jurisdiction and
Enforcement Act (UCCJEA) and declined to transfer jurisdiction to Tennessee. After
hearing testimony from Steven and Nicole and Nicole’s husband, the superior court ruled
that it would enforce summer visitation if Nicole could pass a drug test.
Nicole waited about three weeks before taking and passing a hair follicle
test as ordered by the superior court. After giving Nicole an opportunity to explain the
delay, the superior court found that she had not justified her failure to obtain a timely
drug test. The court ruled that summer visitation in 2012 would not occur, but that
visitation over Christmas break might occur if Nicole could take and pass a drug test
within a month prior to the scheduled visit. At Steven’s request, the superior court
committed to writing its decision to deny Steven’s motion to transfer jurisdiction to
Tennessee.
Despite prevailing below on his opposition to Nicole’s motion, Steven now
appeals the superior court’s order, arguing that the court lacked jurisdiction under the
UCCJEA or, in the alternative, that the superior court should have voluntarily ceded
jurisdiction as an inconvenient forum to Tennessee. Steven raises no other issues on
appeal.
2 Christopher turned 18 two days after Nicole filed her motion to enforce
visitation, and the superior court recognized that he is no longer subject to the visitation
schedule laid out in the settlement agreement.
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III. STANDARD OF REVIEW
Whether a court can exercise jurisdiction under the UCCJEA is a question
3 A superior court’s decision to decline, or to refuse
of law, which we review de novo.
to decline, jurisdiction as an inconvenient forum is reviewed for abuse of discretion.4 An
abuse of discretion is found only if we are left with a “definite and firm conviction” that
a mistake has been made.5
IV. DISCUSSION
A. The Superior Court Had Jurisdiction Under The UCCJEA.
1. The superior court retained jurisdiction because substantial
evidence related to the dispute remains in the state.
Alaska Statute 25.30.310 grants exclusive, continuing jurisdiction over a
child custody case to the court that made the initial child custody determination (in this
case the superior court in Alaska) until certain conditions are met.6 If both parents and
7
the child move out of state, the superior court loses jurisdiction. In this case, Nicole
remains in Alaska. If one parent remains in the state, the superior court retains
jurisdiction until it finds that the child no longer has a significant connection to the state
and that substantial evidence regarding “the child’s care, protection, training, and
3 Atkins v. Vigil , 59 P.3d 255, 256-57 (Alaska 2002) (per curiam) (citations
omitted).
4 Mikesell v. Waterman , 197 P.3d 184, 186 (Alaska 2008) (citing Pinneo v.
Pinneo , 835 P.2d 1233, 1235 (Alaska 1992)).
5 Id. (citing Sawicki v. Haxby, 186 P.3d 546, 550 (Alaska 2008)).
6 AS 25.30.310(a).
7 AS 25.30.310(a)(2).
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8
personal relationships” is no longer available in the state. The question in this case is
whether substantial evidence relevant to summer visitation is available in Alaska.
The superior court concluded that substantial relevant evidence was
available in Alaska because the dispute revolved around Nicole’s drug use and
conditions in her home:
While the children and [Steven] no longer live in Alaska,
[Nicole] does. And the allegations raised in the motion now
before the court primarily involve evidence of matters in
Alaska (i.e. drug use, living conditions, lack of proper
hygiene in mother’s home). The court thus finds that
substantial evidence remains available in this state regarding
the child’s care.
We review the superior court’s determination that substantial evidence related to the
9
dispute was available in Alaska for abuse of discretion.
The allegations Steven made opposing Nicole’s motion to enforce visitation
support the superior court’s finding. In his opposition, Steven argued that Nicole should
not be allowed to have visitation for several reasons specific to Alaska, including that
- Warren has returned from Nicole’s house with ringworm and fungal
infections.
- Warren and Christopher reported illegal drug use in Nicole’s home
while they were there.
- Nicole’s mentally unstable sister lives with her and has threatened
the children.
8 AS 25.30.310(a)(1).
9 See Clifton v. Shannon , 93 So. 3d 70, 72 (Miss. App. 2012) (citing White
v. White, 26 So. 3d 342, 346-48 (Miss. 2010)) (committing the factual question whether
substantial evidence was available in the state to the discretion of the lower court).
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- Nicole has a significant criminal history in Alaska.
- Nicole has the means to hide the children and has done so in the
past.
Steven’s only allegation specific to conduct in Tennessee was that Nicole arrived in
10
Tennessee before her scheduled visitation and “made an embarrassing scene.”
Steven argues that the evidence available in Alaska relates only to Warren’s
11
Evidence of Warren’s
care, not his “protection, training, and personal relationships.”
“protection, training, and personal relationships,” Steven argues, is in Tennessee,
Warren’s home for nearly a decade.
But the only question before the superior court was whether it is safe for
Warren to visit his mother in Alaska. Adverse or dangerous conditions in Nicole’s home
could certainly affect his “care, protection, training, and personal relationships” if
visitation were enforced. Therefore, the superior court did not abuse its discretion by
concluding that substantial evidence remains in Alaska.
The present case can be distinguished from one in which the conditions in
both homes must be evaluated and compared, such as a more general modification of the
custody arrangement. Where one party alleges changed conditions, for example, the
court must engage in a careful examination of the best interests of the child by comparing
10 Steven also made other allegations that were not specific to either state. He
alleged that Warren does not wish to visit his mother in Alaska, that Warren is fearful of
Nicole, and that Nicole is generally combative and abusive toward the children.
11 See AS 25.30.310(a)(1).
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12
the quality of care offered in both homes. In such a case, substantial relevant evidence
may not be present in Alaska.
Steven cites several foreign cases to argue that the trial court erred by
13
But those cases merely
finding that substantial evidence remains in Alaska.
demonstrate that courts do not have jurisdiction when there is no significant connection
14
to or substantial evidence in the state. They do not show that the superior court erred
in this case by finding that substantial evidence is available in Alaska.
We conclude that the superior court did not abuse its discretion by finding
that the most relevant and important factor in modifying the custody agreement was the
safety of Nicole’s home or by finding that evidence of the conditions in Nicole’s home
was available in Alaska. Therefore, the superior court had exclusive jurisdiction over
the case because Nicole lives in Alaska and “substantial evidence remains available in
this state regarding the child’s care.”15
12 See AS 25.20.110(a), (g) (authorizing the court to modify custody if
required by a change in circumstances and requiring the court, when doing so, to
consider the factors set out in AS 25.24.150(c)).
13
See Kalman v. Fuste , 52 A.3d 1010 (Md. Spec. App. 2012); Billhime v.
Billhime , 952 A.2d 1174 (Pa. Super. 2008); Clark v. Clark, 801 N.Y.S.2d 863 (N.Y.
App. Div. 2005); M.B. II v. M.B. , 756 N.Y.S.2d 710 (N.Y. Fam. 2002); In re Marriage
of Medill, 40 P.3d 1087 (Or. App. 2002).
14 See, e.g., Billhime , 952 A.2d at 1177 (finding that a Pennsylvania court
lacked jurisdiction because, in addition to lacking a significant connection to the state,
“essentially all of the evidence presented at the evidentiary hearing demonstrates that
information relating to the children’s welfare is now located in the state of Florida”).
15 See AS 25.30.310(a)(1).
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2. Steven’s arguments that the superior court lost continuing and
exclusive jurisdiction are not persuasive.
Steven also argues that, regardless of where the relevant evidence was
located, the superior court lost continuing and exclusive jurisdiction of the case. First,
Steven argues that the superior court lost jurisdiction because of Warren’s lengthy
absence from the state. Second, Steven argues that the superior court’s exercise of
jurisdiction was improper in the face of Tennessee’s temporary assumption of emergency
jurisdiction. We conclude that neither argument has merit.
a. The superior court did not lose jurisdiction because of
Warren’s lengthy absence from the state.
Steven briefly argues that AS 25.30.310(a) only allows the superior court
to exercise jurisdiction in this case if it finds both that the child has a significant
connection to Alaska and that substantial evidence remains in Alaska. The implied
argument is that jurisdiction should fail in Alaska even if substantial evidence remains
here because, due to their lengthy absence from Alaska, Warren and his father no longer
have a significant connection to the state.
But AS 25.30.310(a)(1) is not a list of requirements that must be fulfilled
to retain jurisdiction, it is a list of requirements that must be fulfilled to lose jurisdiction.
The plain language of the statute requires an absence of both a significant connection to
the state and substantial evidence before jurisdiction is relinquished:
(a) Except as otherwise provided in AS 25.30.330, a court
of this state that has made a child custody determination
consistent with AS 25.30.300 or 25.30.320 has exclusive,
continuing jurisdiction over the determination until
(1) a court of this state determines that neither the
child, the child and one parent, nor the child and a person
acting as a parent have a significant connection with this state
and that substantial evidence is no longer available in this
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state concerning the child’s care, protection, training, and
[16]
personal relationships.
Unless the court finds that both elements are lacking, Alaska retains exclusive,
17
continuing jurisdiction.
Steven also argues that the legislative history of the UCCJEA and the
related Parental Kidnapping Prevention Act compel the conclusion that those statutes do
not allow an Alaska court to retain jurisdiction where the child has resided in a different
state for a long time. “When interpreting statutes we use a sliding-scale approach, under
which the clearer the statutory language is, the more convincing legislative history must
18
be to justify another interpretation.” The legislative history in this case is not
convincing.
First, Steven cites portions of the Parental Kidnapping Prevention Act. But
that Act specifies that the state that made an initial custody determination (in this case
Alaska) retains jurisdiction as long as the state has jurisdiction under state law and at
19
Because the Act simply
least one contestant (in this case Nicole) remains in the state.
defers to state jurisdictional requirements, it fails to advance the analysis in this case.
16 AS 25.30.310(a)(1) (emphasis added).
17 See Misyura v. Misyura , 244 P.3d 519, 521 (Alaska 2010) (citing
AS 25.30.310) (noting that the superior court retained jurisdiction over the parties and
their children despite one parent’s move out of state with the children); E.H. v. State,
Dep’t of Health & Soc. Servs., Div. of Family & Youth Servs. , 23 P.3d 1186, 1192
(Alaska 2001) (discussing AS 25.30.310(a)(1) as a single condition that could terminate
jurisdiction, not as two independent conditions, either of which could terminate
jurisdiction).
18
Interior Cabaret, Hotel Restaurant & Retailers Ass’n v. Fairbanks N. Star
Borough , 135 P.3d 1000, 1002 (Alaska 2006) (citing Bartley v. State, Dep’t of Admin.,
Teachers’ Ret. Bd., 110 P.3d 1254, 1258 (Alaska 2005)).
19 28 U.S.C. § 1738A(d) (2006).
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Second, Steven cites pieces of legislative history discussing the purpose of
20
the UCCJEA. But these sources say only that the UCCJEA was enacted to resolve
21
conflicting jurisdictional requirements between states. They are not relevant to the
issue at hand.
Finally, Steven cites statements of Assistant Attorney General Deborah
22
Behr before the Alaska Legislature about the workings of the UCCJEA. Behr stated
that “[i]f the child has been out of state for a long time and there is better information
23 But Behr was
elsewhere, the Alaska Court could defer jurisdiction to another state.”
testifying about the courts’ discretionary power to cede jurisdiction as an inconvenient
forum under AS 25.30.360, an issue discussed below. We do not believe that she was
suggesting that an Alaska court can never have jurisdiction if “the child had been out of
state a long time,” especially where substantial evidence pertaining to that child’s care
remains in Alaska. We therefore conclude that the legislative history Steven presents is
insufficient to override the clear language of the statute.
20 See UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT
( 1 9 9 7 ) , a t 3 ( N o v . 2 0 , 1 9 9 8 ) , a v a i l a b l e a t
http://www.uniformlaws.org/shared/docs/child_custody_jurisdiction/uccjea_final_97 .
pdf; Minutes, H. Health, Educ. & Soc. Servs. Comm. Hearing on H.B. 335, 20th Leg.,
2d Sess. (Jan. 29, 1998) (statement of Deborah Behr, Assistant Attorney Gen.).
21 See supra note 20.
22
See Minutes, S. Health, Educ. & Soc. Servs. Comm. Hearing on H.B. 335,
20th Leg., 2d Sess. (Mar. 25, 1998) (statement of Deborah Behr, Assistant Attorney
Gen.); Minutes, H. Judiciary Standing Comm. Hearing on H.B. 335, 20th Leg., 2d Sess.
(Feb. 23, 1998) (statement of Deborah Behr, Assistant Attorney Gen.); Minutes, H.
Health, Educ. & Soc. Servs. Comm. Hearing on H.B. 335, 20th Leg., 2d Sess. (Jan. 29,
1998) (statement of Deborah Behr, Assistant Attorney Gen.).
23 Minutes, S. Health, Educ. & Soc. Servs. Comm. Hearing on H.B. 335, 20th
Leg., 2d Sess. (Mar. 25, 1998) (statement of Deborah Behr, Assistant Attorney Gen.).
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b. The superior court’s failure to communicate with the
Tennessee court about its assumption of temporary
emergency jurisdiction did not divest the superior court
of continuing jurisdiction.
Steven also argues that the superior court’s exercise of jurisdiction was
improper in the face of Tennessee’s temporary assumption of emergency jurisdiction.
Steven contends that, after learning of the proceeding in Tennessee, the superior court
in Alaska should have stayed its proceedings to communicate with the Tennessee judge.
The superior court’s failure to do so, Steven argues, warrants reversal. But Steven has
failed to show that this lapse, if erroneous, was reversible error.
The Tennessee court entered an ex parte order asserting temporary
emergency jurisdiction on May 31, 2012, the day after Nicole filed a motion in Alaska
to enforce her visitation. The order stated that the Tennessee court would contact the
tribunal in Alaska to determine when a hearing could be held, and the order was set to
expire June 22, 2012 or whenever a subsequent order was entered. On June 14, the
superior court in Alaska held a hearing on Nicole’s motion to enforce visitation.
An exercise of temporary emergency jurisdiction conveys only limited
power to make temporary orders necessary to protect a minor during an emergency.24
24 See, e.g., In re Briana C. , 2006 WL 2349189, at *1 (Cal. App. 2006); see
also In re Jorge G., 78 Cal. Rptr. 3d 552, 557 (Cal. App. 2008) (holding that the
assumption of temporary emergency jurisdiction pursuant to the UCCJEA does not
confer upon the state exercising emergency jurisdiction the authority to make a
permanent custody disposition); Olson v. Olson, 2002 WL 31056935, at *3 (Minn. App.
2002) (noting that custody determinations made under the temporary emergency
jurisdiction provision of the UCCJEA are temporary and their purpose is to protect a
child until an order is entered by a court with exclusive, continuing jurisdiction or
jurisdiction under either of two other provisions allowing a permanent custody
determination); In re E.J ., 738 S.E.2d 204, 207 (N.C. App. 2013) (holding that, when
exercising temporary emergency jurisdiction, any orders entered shall be temporary
(continued...)
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An exercise of temporary emergency jurisdiction by a foreign court does not destroy
jurisdiction in the court that made the initial custody order: “The court that entered the
initial custody order can: (1) retain jurisdiction and decide whether to modify its initial
order, (2) decline to exercise jurisdiction in favor of a court with a more convenient
forum, or (3) decline to exercise jurisdiction because the petitioner ‘engaged in
25
unjustifiable conduct.’ ”
The court assuming temporary emergency jurisdiction must communicate
26 And the court that made the initial
with the court that made the initial custody order.
custody order should, upon learning of a foreign court’s assumption of temporary
27
“Simply put, [the
emergency jurisdiction, communicate with the foreign court.
temporary emergency jurisdiction provision] requires both courts to communicate with
28
The purpose of this communication is to “resolve the emergency, protect
each other.”
the safety of the parties and the child, and determine a period for the duration of the
temporary order.”29
24(...continued)
protective orders only); Staats v. McKinnon, 206 S.W.3d 532, 546 n.31 (Tenn. App.
2006) (recognizing that emergency jurisdiction is inherently temporary in nature and
does not, as a general rule, authorize courts to make permanent child custody decisions).
25 In re Ruff , 275 P.3d 1175, 1182 (Wash. App. 2012) (citing Washington’s
version of AS 25.30.320, .360, and .370).
26
See AS 25.30.330(d); T.C.A. § 36-6-219(d); see also In re Ruff , 275 P.3d
at 1181.
27 See AS 25.30.330(d); T.C.A. § 36-6-219(d).
28 In re Ruff , 275 P.3d at 1181.
29 AS 25.30.330(d).
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In this case, the Tennessee court did not contact Judge Mark Rindner, nor
did Judge Rindner contact the Tennessee court. Steven asks us to conclude that a mutual
failure to communicate in this case required the Alaska court to yield jurisdiction to a
foreign court asserting only temporary jurisdiction for a limited purpose.
But Steven offers no support for his conclusion that failure to communicate
constitutes reversible error. The ex parte order from the Tennessee court clearly
indicated that it was responsible for contacting Judge Rindner, although the best practice
would have been for Judge Rindner to contact the Tennessee court as well. In any event,
the hearing in Alaska was held promptly, before the expiration date contemplated in the
emergency jurisdiction order. Steven has not shown that communication between the
two judges would have affected this hearing schedule. Nor can Steven, having prevailed
on the merits in the visitation enforcement action, show that he was prejudiced in the
30
result. We therefore conclude that the superior court’s failure to contact the Tennessee
court was not reversible error in this case.
B. The Superior Court Did Not Abuse Its Discretion By Refusing To Cede
Jurisdiction To Tennessee As An Inconvenient Forum.
Steven argues that the superior court abused its discretion by failing to cede
jurisdiction to Tennessee under AS 25.30.360, which allows a court to decline to exercise
jurisdiction if it “determines that it is an inconvenient forum under the circumstances and
31
In particular, Steven argues
that a court of another state is a more appropriate forum.”
that the superior court erred by denying his inconvenient forum motion without
sufficiently discussing the relevant statutory factors. We disagree.
30 See In re C.T. , 121 Cal. Rptr. 2d 897, 906 (Cal. App. 2002) (holding that
failure to communicate did not warrant reversal where there was no showing of
prejudice).
31 AS 25.30.360(a).
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Alaska Statute 25.30.360(b) states that, when ruling on an inconvenient
forum motion, “the court . . . shall consider all relevant factors,” including:
(1) whether domestic violence has occurred and is likely
to continue in the future and which state could best
protect the parties and the child;
(2) the length of time the child has resided outside this
state;
(3) the distance between the court in this state and the
court in the state that would assume jurisdiction;
(4) the relative financial circumstances of the parties;
(5) an agreement of the parties as to which state should
assume jurisdiction;
(6) the nature and location of the evidence required to
resolve the pending litigation, including testimony of
the child;
(7) the ability of the court of each state to decide the issue
expeditiously and the procedures necessary to present
the evidence; and
(8) the familiarity of the court of each state with the facts
[32]
and issues in the pending litigation.
In Szmyd v. Szmyd, we held that it was an error under the Uniform Child
Custody Jurisdiction Act (the precursor to the current UCCJEA) for a court to deny an
33
Without a sufficiently
inconvenient forum motion without articulating its reasoning.
thorough discussion of the superior court’s reasoning, it is “difficult to determine
whether the court abused its discretion, that is, to determine whether it considered the
32 AS 25.30.360(b).
33 641 P.2d 14, 19 (Alaska 1982).
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34
statutory factors, or what interpretation it placed on the facts.” Although Szmyd was
discussing an earlier statute with a different set of factors, the requirement that the
superior court articulate its reasoning for denying an inconvenient forum motion remains
good law.35
Because the hearing was limited to the narrow question of whether summer
visitation at Nicole’s home should be enforced, we conclude that the determinative factor
in this case was the sixth factor, “the nature and location of the evidence required to
36
resolve the pending litigation.” The superior court made sufficient findings to allow
us to conclude that it considered this statutory factor. It found that “in light of the
allegations made by [Steven] regarding [Nicole], Alaska is not an inconvenient forum.”
Read in context, the superior court was clearly referencing its earlier finding that
“substantial evidence remains available in this state regarding the child’s care.” And
while the superior court’s findings and discussion could have been more detailed,
addressing all of the factors, it was enough to address only the “pertinent and potentially
37
determinative factors.” We therefore conclude that the superior court did not abuse its
discretion by denying Steven’s inconvenient forum motion.
34 Id.
35 Cf. Mikesell v. Waterman, 197 P.3d 184, 190 (Alaska 2008) (citing another
holding in Smzyd as good law).
36 AS 25.30.360(b)(6).
37 Virgin v. Virgin, 990 P.2d 1040, 1047 (Alaska 1999) (quoting Borchgrevink
v. Borchgrevink , 941 P.2d 132, 138 (Alaska 1997)) (internal quotation marks omitted)
(holding that “searching for errors and remanding any time the trial court fails to make
explicit findings for each factor would not further children’s best interests”).
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V. CONCLUSION
Because the superior court had jurisdiction under the Uniform Child
Custody Jurisdiction and Enforcement Act, and because the superior court’s refusal to
cede that jurisdiction as an inconvenient forum was not an abuse of discretion, we
AFFIRM the judgment of the superior court.
-16- 6812
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