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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Nancy M. v. John M. (9/13/2013) sp-6823
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
NANCY M., )
) Supreme Court No. S-14791
Appellant, )
) Superior Court No. 3AN-09-07901 CI
v. )
)
JOHN M., ) O P I N I O N
)
Appellee. ) No. 6823 - September 13, 2013
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Eric A. Aarseth, Judge.
Appearances: Robin A. Taylor, Law Office of Robin Taylor,
Anchorage, for Appellant. Allen M. Bailey, Anchorage, for
Appellee.
Before: Fabe, Chief Justice, Winfree, Maassen, and Bolger,
Justices. [Stowers, Justice, not participating]
BOLGER, Justice.
I. INTRODUCTION
The parties to this custody dispute initially lived together in Alaska, but
their relationship ended before the birth of their daughter, and the mother relocated to
California to attend graduate school. After lengthy litigation, the superior court awarded
the father primary custody based on its findings that: (1) the father was more likely to
foster a close and continuing relationship between the mother and the child; (2) the
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stability factor slightly favored the father; and (3) the mother's flexibility in caring for
the child would be slightly limited due to the impending birth of her second child.
The mother appeals, arguing that the superior court's findings are clearly
erroneous. She also argues that the court erred in its application of the custody statute,
in disregarding the custody investigator's recommendations, and in formulating various
aspects of the final custody order. We affirm the custody order, but we remand on the
issue of visitation costs to clarify ambiguity in the court's order.
II. FACTS AND PROCEEDINGS
A. Facts
1
The couple
John M. and Nancy M. are the parents of four-year-old Nina.
had an on-again, off-again relationship between 2007 and 2009, when Nina was born.
In 2010, Nancy relocated to California to attend graduate school. She
resided in an apartment in Los Angeles. At the time of trial, Nancy was in the process
of completing her master's degree and had applied to various doctoral programs in
California. Nancy became pregnant again in 2011, and she was due to give birth
sometime in the spring of 2012.
John continued to reside in Alaska, employed as a professor at the
University of Alaska. His job involved occasional travel to conferences outside of
Anchorage. In 2011, John purchased a home in Anchorage. John has family in the Los
Angeles area, including his mother, father, and brother.
B. Proceedings
Shortly after Nina's birth, John initiated legal proceedings to obtain sole
legal and physical custody of Nina. Although Nancy wished to relocate with Nina to
California to attend graduate school, the superior court prohibited Nancy from taking the
1 Pseudonyms have been used to protect the privacy of the parties.
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child out of Alaska until the custody hearing had taken place. Following hearings in
February and August 2010, the court issued an interim custody order awarding the
parties joint legal custody and John primary physical custody of Nina. In October 2010,
the superior court issued another interim order stating that the parties had agreed to share
interim legal and physical custody of their daughter until trial. It provided that Nina
would spend alternating three-month periods with her parents in their respective homes,
which were now in different states because Nancy had relocated to California.
The superior court appointed a custody investigator. The investigator's
final report recommended that the parties continue to share physical custody equally
(continuing the then-current schedule alternating three-month periods of custody) until
Nina began kindergarten in 2014. The custody investigator acknowledged that once
Nina began attending school, the schedule would need to be altered so that one parent
had custody during the school year and the other during the summer, but declined to
recommend which parent should take which role.
The final, two-day custody trial occurred on January 31 and February 1,
2012. The court heard testimony from both parties, as well as from the custody
investigator and from John's mother, Lisa. John argued at trial that he was the more
stable parent and was more willing to foster a close and continuing relationship between
Nina and the other parent. He proposed a custody schedule that would gradually
increase his custodial time over the next three years until he had primary custody once
Nina began school.
Nancy proposed that the parties continue to share custody equally,
alternating custody every three months until Nina began kindergarten. But she argued
that once school started, she should be awarded primary custody. The custody
investigator's testimony echoed her 2012 report. She recommended that the parties share
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custody equally until 2014, when Nina began kindergarten; at that point, she proposed
that the court determine which parent should have primary custody.
The superior court granted the parties joint legal custody and shared
physical custody of Nina. The order provided that over the next three years, physical
custody would transition to a schedule under which John had primary physical custody.
The superior court considered the statutory custodial factors under AS 25.24.150(c).2
2 AS 25.24.150(c) provides:
The court shall determine custody in accordance with
the best interests of the child under AS 25.20.060--25.20.130.
In determining the best interests of the child the court shall
consider
(1) the physical, emotional, mental, religious, and
social needs of the child;
(2) the capability and desire of each parent to meet
these needs;
(3) the child's preference if the child is of sufficient
age and capacity to form a preference;
(4) the love and affection existing between the child
and each parent;
(5) the length of time the child has lived in a stable,
satisfactory environment and the desirability of maintaining
continuity;
(6) the willingness and ability of each parent to
facilitate and encourage a close and continuing relationship
between the other parent and the child, except that the court
may not consider this willingness and ability if one parent
(continued...)
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It found that Nina had no special needs and that the second, fourth, and seventh factors
favored neither party. It gave no weight to the third and eighth factors. But the court
found that the fifth and sixth factors - the length of time that the child has lived in a
stable environment and the desirability of maintaining continuity, and the desire and
ability of each parent to allow an open and loving relationship between the child and the
other parent - both favored John. Finally, the court noted that due to the impending
birth of her second child, Nancy's flexibility to meet Nina's needs was slightly more
limited than John's. Nancy appeals.
III. STANDARD OF REVIEW
"The superior court has broad discretion in determining custody awards so
3 We will not reverse a custody
long as the determination is in the child's best interests."
order unless the superior court abused its discretion or its controlling factual findings are
2 (...continued)
shows that the other parent has sexually assaulted or engaged
in domestic violence against the parent or a child, and that a
continuing relationship with the other parent will endanger
the health or safety of either the parent or the child;
(7) any evidence of domestic violence, child abuse, or
child neglect in the proposed custodial household or a history
of violence between the parents;
(8) evidence that substance abuse by either parent or
other members of the household directly affects the emotional
or physical well-being of the child;
(9) other factors that the court considers pertinent.
3 Stephanie F. v. George C., 270 P.3d 737, 745 (Alaska 2012) (quoting
Misyura v. Misyura , 242 P.3d 1037, 1039 (Alaska 2010)) (internal quotation marks
omitted).
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4
clearly erroneous. The superior court abuses its discretion if it "considers improper
factors in making its custody determination, fails to consider statutorily mandated
5
factors, or assigns disproportionate weight to particular factors while ignoring others."
"Factual findings are clearly erroneous if a review of the record leaves us 'with a definite
6
and firm conviction that a mistake has been made.' " "We give 'particular deference'
to the trial court's factual findings when they are based primarily on oral testimony,
because the trial court, not this court, performs the function of judging the credibility of
witnesses and weighing conflicting evidence."7
IV. DISCUSSION
A. The Superior Court Did Not Clearly Err In Finding That John Was
More Likely To Facilitate A Relationship Between Nina And The
Other Parent.
Nancy argues that the superior court's finding that John was more likely to
facilitate a relationship between Nina and the other parent is clearly erroneous. John
replies that the record supported the superior court's finding.
The court's conclusion was based primarily on John's behavior throughout
the proceedings. The court noted that John had a strong track record of supporting
Nancy's relationship with Nina, and it stated that "[a]t almost every turn, [John] has
taken the extra step to afford [Nancy] opportunities to visit[] with Nina that she might
not otherwise have enjoyed." The record supports this finding. While John allowed
Nancy visitation time with Nina in addition to court-ordered visitation, Nancy never
4 Id. (quoting Misyura , 242 P.3d at 1039) (internal quotation marks omitted).
5 Id. (quoting Misyura , 242 P.3d at 1039).
6 Misyura , 242 P.3d at1039 (quoting Jenkins v. Handel , 10 P.3d 586, 589
(Alaska 2000)) (alteration omitted).
7 Id. (quoting Ebertz v. Ebertz , 113 P.3d 643, 646 (Alaska 2005)).
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offered John extra time with Nina - and she even shortened John's court-ordered
visitation. There also was evidence that John was more likely to facilitate open
communication between the parties regarding Nina. Between July 2010 and January
2012, John sent Nancy 18 update emails regarding Nina's progress, but only received
four update emails from Nancy.
The superior court contrasted John's actions with Nancy's; it noted that
while there had been no "overt efforts" to exclude John, Nancy had "consistently, albeit
subtly[,] demonstrated a posture that does not include [John] or his family in [Nina]'s
life." The court cited the questionnaires both parties filled out as part of the custody
investigation as an example of this. In response to the question, "Who else is important
in each child's life?" John identified Nancy; but Nancy only named members of her own
family and did not mention John or his family.
Nancy correctly points out that the custody investigator testified that it is
common for parents to interpret that question as asking about people other than the
parents themselves: "I actually have that happen a lot. And the question probably needs
to be reworded so that I specifically say someone other than Mom and Dad, who's
important in the child's life." The custody investigator further testified that it was clear
from her discussions with Nancy that Nancy "recognizes that her daughter loves her dad,
has a good relationship with him[,] and that he needs to be part of her life." With respect
to this finding and others, Nancy argues that the superior court erred in disregarding the
custody investigator's testimony and recommendations and in failing to make findings
explaining why it rejected those recommendations. But a trial court is not obligated to
adopt a custody investigator's recommendations or opinion,8 nor must it make specific
8 Chesser v. Chesser-Witmer, 178 P.3d 1154, 1159 (Alaska 2008) (citing
Ebertz , 113 P.3d at 647).
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findings regarding those recommendations as long as it considers the appropriate
statutory factors when making a custody determination.9 We have identified the "critical
question" as "not whether the superior court erred in rejecting the custody investigator's
10
proposed decision, but whether the evidence as a whole supports the court's decision."
In this case, there is significant evidence in the record supporting the
superior court's conclusion. John testified that even before Nina's birth he was
concerned Nancy would not allow him to be involved in his daughter's life. John
testified that Nancy would not permit him to see Nina from the time that Nancy moved
out of his house in late June 2009 (a month after Nina's birth) until the court ordered that
John receive visitation about a month later. He further testified that once supervised
visitation had been ordered Nancy would interfere with his visitation time by demanding
that he return Nina to her if the baby needed to be fed or changed, or if she became fussy
and needed to be soothed.
There was also evidence that Nancy was somewhat unsupportive of the
relationship between Nina and John's family in California - particularly with John's
mother, Lisa. Lisa, who lives about an hour from Nancy, testified that she had requested
visitation time with Nina six times, and that Nancy had refused to permit visitation
except on one occasion, for three hours. Lisa also testified that Nancy did not make her
feel welcome to visit her home to see Nina and that Nancy never spoke to her during
exchanges.
Nancy testified that Lisa was hostile to her and refused to tell Nancy where
she was taking Nina. She also testified that her "door is always opened" to John's
extended family, though she admitted that she had never contacted any of his family
9 Chase v. Chase, 109 P.3d 942, 946 (Alaska 2005).
10 Ebertz , 113 P.3d at 647-48.
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members with an opportunity to spend time with Nina. Perhaps most revealing of
Nancy's attitude toward facilitating a relationship between Nina and John's extended
family, though, was her testimony that it would be "impossible" to give members of
John's family their own personal time with Nina during Nancy's custodial time:
I think right now given both of our limited time with [Nina]
with the three-months-on/three-months-off that it is
impossible for [John's] extended family to have their own
personal time because that would require a lot of time taken
away from me because I'm out here with both extended
families. And I'm already splitting my time with Nina six
months out of [the] year plus . . . school. And for extended
family to spend time with her while she's with me would
require us all to be together.
We have explained that the close and continuing relationship factor takes
on "increased significance" when the parties reside in different cities, and thus it is
reasonable for the court to place "enhanced importance" on this factor in a custody
determination.11
There was ample support for the court's conclusion that this factor
favored John: The evidence indicated that John was more willing to facilitate visitation
between Nina and Nancy and that he was more likely to foster open communication.
The court's finding is not clearly erroneous.
B. The Superior Court Did Not Err In Finding That The Stability Factor
Favored John.
The superior court found that the stability factor "slightly favor[ed]" John.
It explained:
11 Blanton v. Yourkowski , 180 P.3d 948, 951 (Alaska 2008) ("It is essential
to have a custodial parent willing to foster an open relationship with the other parent
when a great distance separates the children from the non-custodial parent, and it is
reasonable for the superior court to place enhanced importance on this factor when
making its decision.") (quoting Silvan v. Alcina, 105 P.3d 117, 121 (Alaska 2005)).
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[John] lives in a house in a quiet residential neighborhood.
[Nancy] lives in a an apartment in a busy urban area. Neither
is necessarily better-suited to meet [Nina]'s needs. The
choice between these two neighborhoods is more a matter of
personal preference than of [Nina]'s needs. That said,
[John]'s home is better-suited for long-term stability as he
owns his home and has lived and worked in the area for a
long period of time. In addition, [Nancy] has some unknown
variables in her life regarding her future college and work
career. Considering those factors, [John] is in a better
situation to provide a more certain forecast of educational
options for [Nina]. This factor slightly favors the father.
Nancy argues that the superior court determined that Nancy's status as a
graduate student and a renter evinced a lack of stability. She contends that favoring a
home owner over a renter and penalizing a parent for attending graduate school is error.12
John replies that the superior court did not determine that the stability factor favored him
merely because he owned his own home; rather, the court considered a variety of factors
indicating that John would be able to provide long-term stability - including John's
long residence in the community and his tenured position at the university. He contends
that the court appropriately contrasted these indicators of stability with the unknown
variables in Nancy's life, including where she would live, work, and attend graduate
school over the next several years.
13 which concerned a
Nancy primarily relies upon Veselsky v. Veselsky,
mother who desired to move out of state to attend graduate school and was nonetheless
awarded primary custody of the parties' children. But Nancy's reliance on Veselsky is
12 Nancy also frames her argument as a challenge to the superior court's
factual findings, contending that its finding under subsection .150(c)(5) was clearly
erroneous. But her brief only discusses the alleged error in the court's legal reasoning,
and she does not identify any evidence the superior court failed to consider.
13 113 P.3d 629, 631 (Alaska 2005).
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misplaced. The Veselsky court recognized that graduate school and the desire to be
14 but the legitimacy of
closer to extended family are legitimate reasons for a move,
Nancy's motivation to move to California is not disputed. The superior court addressed
this issue in an earlier order, when it recognized that Nancy had legitimate motives for
her move to California, and that the move was a "non-factor" in determining custody.
We have recognized that stability and continuity "can encompass a
multitude of factors, including, but not limited to, the relationship with the custodial
parent, the home provided by the custodial parent, the children's school, the community
of friends and family, the cultural community, the children's relationship with the non-
15
custodial parent[,] and stability of place." "It is the trial court's task to examine all of
these factors and determine, in each case, which predominate."16
Because the continuity factor includes both emotional stability and
17
geographical stability, courts must consider both geographical and emotional
18 19
continuity. And as Justice Rabinowitz cautioned in Craig v. McBride, "[a]though the
14 Id. at 633 (citing House v. House , 779 P.2d 1204, 1208 (Alaska 1989);
Vachon v. Pugliese, 931 P.2d 371, 379 (Alaska 1996)); see also Williams v. Barbee, 243
P.3d 995, 1000 (Alaska 2010) ("In cases involving a parent's relocation out of state, as
long as the relocating parent's reasons for moving are legitimate, the trial court must
examine the best interests of the child.") (citing Eniero v. Brekke , 192 P.3d 147, 150
(Alaska 2008); Barrett v. Alguire , 35 P.3d 1, 7 (Alaska 2001)).
15 Williams, 243 P.3d at 1006 (quoting Moeller-Prokosch v. Prokosch , 99
P.3d 531, 534 (Alaska 2004)) (alterations omitted).
16 Id. (quoting Barrett , 35 P.3d at 9) (internal quotation marks omitted).
17
Blanton , 180 P.3d at 954 (citing Meier v. Cloud , 34 P.3d 1274, 1279
(Alaska 2001)).
18 Moeller-Prokosch , 99 P.3d at 535 (holding that failure to consider
(continued...)
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stability of the home environment is one of the factors that must be considered in making
a custody decision, the fact that the physical location of a child's home changes may
20
Justice Rabinowitz also noted
have little or no bearing on the stability of the home."
that "[s]tability is often a function of parental attitude and not of geography . . . . [T]he
fact that a parent remains rooted in one community provides no guarantee that his or her
21 22
child will have a stable, loving home." Moreover, in Evans v. Evans , we held that the
trial court properly "broadened its consideration" of the stability factor "to encompass
the children's more general needs for stability in their overall living environment . . . not
just in relation to each parent, but in relation to the totality of the circumstances they
were likely to encounter in their respective parents' homes."23
But we have also held that a trial court did not err in concluding that the
stability factor favored the father where the father had resided in the same community
for a long period of time and his living arrangements were "settled" and the mother's
24
And in Craig v.
future living situation was unclear in light of a potential move.
18 (...continued)
emotional stability was abuse of discretion); Blanton , 180 P.3d at 954 ("[A] court
considering the child's need for continuity and stability in this context must examine not
only the desirability of maintaining geographical continuity, but also the importance of
maximizing relational stability.") (quoting Meier , 34 P.3d at 1279).
19 639 P.2d 303 (Alaska 1982).
20 Id . at 308 (Rabinowitz, C.J., concurring).
21 Id .
22 869 P.2d 478 (Alaska 1994).
23 Id . at 482.
24 Blanton , 180 P.3d at 954-55.
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McBride , we recognized that "the fact that the mother had only recently attempted to
25
create a stable home environment was entitled to consideration." In this case, we do
not interpret the superior court's remarks to suggest that it gave home ownership an
overriding preference over home rental. The court explained that the choice between
Nancy's home and John's home was "a matter of personal preference" and noted that
Nancy's future plans with respect to her education and career were still undetermined.
The superior court's finding on the stability factor is supported by the record.
C. The Superior Court Did Not Err In Considering The Birth Of
Nancy's Second Child.
At trial, John argued that the birth of Nancy's second child would interfere
with her ability to care for Nina. The superior court noted that "[a]lthough a new and
additional child certainly introduces a new challenge into [Nancy]'s life, whether that
new baby will have a significant impact either positive or negative is not measurable at
this time." Accordingly, the court simply noted that Nancy's "flexibility to meet [Nina]'s
need is slightly more limited" than John's due to the newborn, second child. Nancy
contends that this finding is clearly erroneous; she notes that no evidence was offered
that the addition of a sibling would negatively impact Nancy's ability to care for Nina.
She also argues that, to the extent that this factor weighed against her in the custody
determination, it was legal error. Nancy does not cite any case law in support of her
argument.
A court should not determine custody based on the number of children a
party is caring for; the determination should be based on case-specific evidence of each
25 639 P.2d at 305.
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26
parent's capability to care for the child or children in question. But we do not read the
superior court's comment to mean that it gave this factor improper significance; it was
careful to state that the impact of Nancy's new baby "is not measurable at this time." We
interpret the court's comments to be largely responsive to - and dismissive of - John's
argument at trial that Nancy's newborn would negatively impact Nina. We therefore
conclude that the superior court did not err.
D. Other Issues
1. The custody schedule
The superior court ordered that Nina spend gradually increasing time in
John's custody until 2014, when an approximate nine-month/three-month division would
begin when Nina began to attend kindergarten. Nancy argues that the superior court
erred by failing to explain how this custody schedule was in the best interests of the
child. She correctly points out that the court's order regarding the changes in the custody
schedule are at odds with the custody investigator's recommendations. The custody
investigator recommended continuing the alternating three-month periods of custody
until 2014, and she testified that gradually increasing John's custodial time with Nina
over a period of several years was potentially more disruptive to Nina.
As noted above, a trial court is not obligated to follow the recommendations
of a custody investigator. Moreover, here the custody investigator acknowledged that
gradual change often worked for children and sometimes made more sense than an
abrupt change. John testified that he thought such a schedule would be in the best
interests of his daughter, and the court may have chosen to credit such testimony over
26 Id. at 953 ("The necessary inquiry requires an examination of 'case-specific
evidence' of each parent's capability to care for the child.") (quoting West v. West, 21
P.3d 838, 843 (Alaska 2001)).
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the custody investigator's. The superior court did not abuse its discretion when it
ordered this gradual change in the custody schedule.
2. John's travel
Nancy contends that the superior court erred by failing to address John's
travel schedule - which she characterizes as "frequent[]" and "extensive." Specifically,
she argues that the court ought to have ordered that Nina stay with Nancy while John
traveled.
But Nancy mischaracterizes John's travel obligations. John testified at trial
that if he had primary custody of Nina, he would expect to travel to two or three
conferences a year and that those conferences typically last three days. It would not have
been reasonable for the court to order that Nancy take custody of Nina during these trips,
especially considering the amount of travel and expense involved. The superior court
did not err by failing to address John's travel schedule in its order.
3. Allocation of visitation expenses
Nancy argues that the court erred in allocating the bulk of travel costs to
Nancy because her income is significantly lower than John's. John responds that the
allocation of visitation expenses is appropriate because he has to pay for eight trips per
year (adult and child tickets), while Nancy is only responsible for the cost of two to four
trips per year (adult ticket only).
We remand this issue for clarification because the superior court's order is
ambiguous with respect to travel costs. The section of the order concerning travel costs
provided that Nancy was responsible for the first $500 of travel costs, John was
responsible for the second $500 of travel costs, and Nancy was responsible for any costs
exceeding $1,000. But in the section of the order dealing with physical custody, the
court adopted the schedule as proposed by John in two trial exhibits. While one of the
exhibits is simply a schedule, the other exhibit resembles a proposed order in that it
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addresses topics such as the allocation of travel costs. The exhibit provides that John is
responsible for the bulk of travel costs. It is unclear whether the court intended to
incorporate in its order the allocation of travel costs proposed in the exhibit.
John seems to read the decree to incorporate an allocation that is favorable
to Nancy, and Nancy seems to agree with this reading. The superior court may wish to
incorporate this reading on remand.
4. Federal tax exemption
Nancy contends the superior court erred in awarding John the entitlement
to claim Nina as a dependent for federal tax purposes. She argues that the trial court was
required to make specific findings explaining why this arrangement was "just and
proper" and that its failure to do so is reversible error.
Alaska Civil Rule 90.3(k) provides that, consistent with AS 25.24.152 and
federal law, the trial court may allocate the federal tax exemption for a child between the
parties "as is just and proper and in the child's best interests." Alaska Statute 25.24.152
places limitations on the circumstances under which the court may grant a noncustodial
parent the right to claim a child as a dependent under federal income tax laws, but does
27
not otherwise restrict the court's discretion.
27 AS 25.24.152 provides, in relevant part:
(a) In an action for divorce, dissolution, or to declare a
marriage void, the court may not unconditionally grant to a
noncustodial parent the right to claim a child as a dependent
under federal income tax laws . . . .
(b) In this section, "noncustodial parent" means the parent
who has actual physical custody of the child for less time
than the other parent.
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The court ordered that the parties share physical custody until John
becomes the primary custodial parent in 2014. But John will actually exercise the
majority of this physical custody as Nina approaches a school-year schedule. Moreover,
John may be paying some amount of child support until he has primary custody of Nina
due to the disparity in the parties' incomes. We conclude that it was within the court's
discretion to award John the federal tax exemption. Under these circumstances, further
findings on this issue were unnecessary.
V. CONCLUSION
We REMAND for the superior court to clarify its order with respect to the
allocation of visitation expenses. We AFFIRM the superior court's order in all other
respects.
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