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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Stephanie W. v. Maxwell V. (2/28/2014) sp-6869
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
STEPHANIE W., )
) Supreme Court No. S-15065
Appellant, )
) Superior Court No. 3PA-09-02329 CI
v. )
) O P I N I O N
MAXWELL V., )
) No. 6869 - February 28, 2014
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Palmer, Eric Smith, Judge.
Appearances: Richard W. Postma, Jr., Law Offices of Dan
Allan & Associates, Anchorage, for Appellant. No
appearance by Appellee.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and
Bolger, Justices.
FABE, Chief Justice.
I. INTRODUCTION
Stephanie W. and Maxwell V. have a son, Terrance.1
Maxwell sued for
custody of Terrance, and the superior court granted him primary physical custody and
1 We use pseudonyms throughout this opinion to protect the privacy of the
persons involved.
----------------------- Page 2-----------------------
2
joint legal custody. In Stephanie W. v. Maxwell V., we reviewed that first custody order
and affirmed it in most respects but remanded for reconsideration of two custody
3
factors. On remand, the superior court again granted Maxwell primary physical
custody.
Stephanie appeals this second custody order. Two of her arguments,
relating to discovery, were not preserved for appeal, are therefore forfeited, and do not
constitute plain error. A third fails on the merits. She also challenges the superior
court's determination of two custody factors in light of this court's remand instructions
in Stephanie W., arguing that the superior court abused its discretion by failing to
consider Maxwell's child support arrears in its stability determination, and that the
superior court abused its discretion by holding against her, in the continuing-relationship
determination, her allegations that Maxwell was manufacturing methamphetamine with
Terrance present.
We affirm the superior court's order in all respects.
II. FACTS AND PROCEEDINGS
Terrance was born to Stephanie and Maxwell in December 2002 in New
Mexico. His parents never married. Maxwell moved to Alaska and left Stephanie while
she was pregnant. Maxwell had no relationship with Terrance for three and a half years
until Maxwell's mother, who had maintained a relationship with Stephanie and Terrance,
brought Terrance to Alaska for the summer of 2005. Terrance came to Alaska to live
with Maxwell and Maxwell's mother from May 2006 to January 2007. He then lived
with Maxwell for a full year starting in June 2008. Maxwell returned Terrance to
Stephanie in New Mexico in June 2009 for what Maxwell thought was to be a summer
2 274 P.3d 1185 (Alaska 2012).
3 Id. at 1193.
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visit. When Stephanie refused to send Terrance back to Alaska at the end of the summer,
Maxwell filed a motion for custody in Alaska, seeking sole legal and primary physical
custody.
1. First custody order and first appeal
In the superior court's first order granting Maxwell primary physical
custody during the school year and Stephanie custody during the summers, with shared
legal custody, the court relied on a number of statutory custody factors. Relevant to the
first appeal was the superior court's determination under AS 25.24.150(c)(5), the
4
stability factor, that Maxwell had a "more stable situation and more stable personality"
and could therefore "provide [Terrance] with a consistent living situation," while
Stephanie was "in a considerably more fluid situation" because she worked four 12-hour
shifts as a nurse at a hospital 70 miles from her home and could therefore not provide a
stable environment for Terrance. In making this finding, the superior court did not
consider the fact that Maxwell owed Stephanie $23,855.14 in outstanding child support
arrears. The superior court also determined under AS 25.24.150(c)(6), the continuing-
5
relationship factor, that Maxwell was willing to foster a relationship between Terrance
and Stephanie but that Stephanie was not willing to reciprocate. The court relied, in part,
on the fact that Stephanie had alleged that Maxwell had sexually abused Terrance in
4 AS 25.24.150(c)(5) provides that a court determining custody in light of the
best interests of the child shall consider "the length of time the child has lived in a stable,
satisfactory environment and the desirability of maintaining continuity."
5 AS 25.24.150(c)(6) provides that a court determining custody in light of the
best interests of the child shall consider "the willingness and ability of each parent to
facilitate and encourage a close and continuing relationship between the other parent and
the child, except that the court may not consider this willingness and ability if one parent
shows that the other parent has sexually assaulted or engaged in domestic violence
against the parent or a child, and that a continuing relationship with the other parent will
endanger the health or safety of either the parent or the child."
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Alaska and that, even though the superior court found that Stephanie had not proved that
allegation by a preponderance of the evidence, Stephanie was unlikely to let the
allegation go and would likely "convey[] her fears to [Terrance]."
In Stephanie's first appeal of the superior court's custody order in
6
Stephanie W. v. Maxwell V., we upheld the order in most respects but reversed and
remanded for reconsideration of the stability and continuing-relationship factors.7 On
the stability issue, we surmised that "Maxwell's failure to pay child support was likely
a contributing factor to Stephanie's grueling work schedule" and concluded that the
superior court must "reconsider the continuity and stability factor taking account of
Maxwell's failure to provide any meaningful monetary support for Terrance and
8
Stephanie's efforts to provide economically for her children." On the continuing-
relationship factor, we noted that AS 25.24.150(c)(6) creates a statutory exception that
precludes a court from holding against a parent her unwillingness to foster a relationship
with another parent who has engaged in domestic violence or sexual abuse against the
9
parent or a child. On policy grounds, we adopted a rule protecting allegations of
10
We
conduct that could constitute sexual abuse but are ultimately not proved at trial.
noted that the superior court in this case found Stephanie's allegations of sexual abuse
"troubling" and that Stephanie had introduced expert opinion testimony supporting her
6 274 P.3d 1185 (Alaska 2012).
7 Id. at 1193.
8 Id.
9 Id. at 1190-91.
10 Id. at 1191.
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11
allegation. We remanded with instructions "not [to] consider this factor against
Stephanie unless she has continued her unwillingness to facilitate such a relationship in
the period after the superior court made its evidence-based finding that Maxwell had not
abused Terrance."12
2. Second custody order and arguments on appeal
On remand, the superior court held an initial hearing on August 3, 2012.
Stephanie and her attorney participated by telephone, as did the judge, but Maxwell did
not appear or participate by telephone. Stephanie's attorney told the superior court that
"[Maxwell] ha[d] pretty much dropped off our radar," that calls and letters had bounced
back undelivered, that Stephanie did not know when or where to return Terrance to
Alaska, and that Maxwell had a history of disappearing. Based on these representations,
the superior court invited Stephanie to file an expedited request for custody modification
to permit Terrance to stay with Stephanie in New Mexico rather than return to Alaska.
Maxwell filed a motion with the superior court on August 20, 2012, stating
that he had miscalendared the hearing and arguing that Stephanie had "misl[ed] this court
by saying that [Maxwell] has 'fallen off the planet.' " Maxwell stated that he was
attaching his telephone records "showing that there has in fact been communication"
between himself, his son, and Stephanie, but he did not attach those records. At the
subsequent trial-setting conference on August 30, 2012, the superior court told Maxwell,
"You do need to supplement what you filed, because . . . the phone records were not
attached to your paperwork. . . . Since you said it was there you need to supply it."
Maxwell never supplied his phone records.
11 Id.
12 Id.
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In preparation for the rescheduled hearing on remand, Stephanie sent
Maxwell ten requests for production of evidence, eight interrogatories, and three requests
for admission in two sets of discovery requests dated September 6 and 7, 2012. The
three requests for admission requested Maxwell to admit the truth of the following
statements: (1) "that [Terrance] has lived with [Maxwell's] mother . . . for the majority
of the time between August 15, 2011 and May 30, 2012"; (2) "that [Maxwell] refused
to communicate with [Stephanie] about [Terrance's] return to Alaska prior to August 6,
2012"; and (3) that "[Maxwell] stopped [Terrance's] counseling without first consulting
with [Stephanie] as his joint legal custodian." Maxwell did not timely respond to these
requests for admissions; indeed, he never responded at all.
13
relief on October 31,
Stephanie filed a motion for Alaska Civil Rule 37(d)
2012, noting that Maxwell had not responded to her interrogatories and requests for
production14 and seeking discovery sanctions that would take the stability factor "as
established in [Stephanie's] favor" and preclude Maxwell "from introducing evidence
to support or oppose these factors." Stephanie also requested the superior court to take
as established "[Maxwell's] unwillingness to foster or allow a close and continuing
relationship" between Terrance and Stephanie and to preclude Maxwell "from
introducing evidence to support or oppose this finding."
At the final hearing on remand on November 13, 2012, the superior court
denied Stephanie's motion for Rule 37(d) relief. The superior court correctly reasoned
13 Alaska Rule of Civil Procedure 37(d) provides, "If a party . . . fails . . . to
serve answers or objections to interrogatories submitted under Rule 33 . . . or . . . to serve
a written response to a request for inspection submitted under Rule 34, . . . the court in
which the action is pending on motion may make such orders in regard to the failure as
are just . . . ."
14 Her motion omitted any reference to unanswered requests for admission.
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----------------------- Page 7-----------------------
that it could not impose "litigation-ending sanctions" without first exploring alternatives
such as a continuance, a show-cause hearing, or a motion to compel. At the hearing,
Stephanie and Maxwell testified and presented evidence regarding the three facts that
Stephanie had requested that Maxwell admit. Stephanie never asked that the unanswered
requests for admission be deemed admitted and conclusive of the alleged facts, and she
never argued that the superior court erred by not reiterating its requirement that Maxwell
produce his telephone records.
The superior court granted Maxwell primary physical custody and shared
legal custody. On the stability issue, the superior court noted that "it has had some
difficulty implementing the [supreme court's] orders on remand" because it could "find
no support in the record of the first hearing for the statement that [Stephanie] chose her
nursing job in part because she had not been receiving child support." The superior court
noted that "when directly asked at the recent hearing why she took the job, she stated that
it paid well and was close to family." The superior court concluded that the supreme
court's remand instructions on this issue were moot because Stephanie's circumstances
had changed: She lived near her work and had a normal working schedule, such that the
stability factor now "favors [Stephanie] to some extent, since she is financially more
stable than [Maxwell]."
On the continuing-relationship issue, the superior court determined that
because Terrance "has admitted he lied about the sexual abuse," Stephanie "has no
reason to be concerned about this issue any more, thereby rendering the allegations
irrelevant to the close relationship factor." The superior court went on to conclude that
"[t]he close relationship factor . . . strongly favors [Maxwell]." The superior court
provided a number of reasons leading to its conclusion, including its finding that
Maxwell "has not allowed his feelings to preclude [Terrance] from having a relationship
with his mother," while "[t]he same cannot be said for" Stephanie because "she monitors
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----------------------- Page 8-----------------------
[Terrance's] calls with his father." The superior court "found credible . . . [Maxwell's]
allegation that [Stephanie] would tell [Terrance] what to say [on the phone]." The
superior court also noted that the "most important" factor in its continuing-relationship
determination was its finding that Stephanie "simply was not completely straightforward
with the court at the [first] hearing [on remand]" when she "led the court to believe that
[Maxwell] no longer was involved with his son and that she had no way to reach
[Maxwell]." "[Stephanie] basically took advantage of [Maxwell's] absence from the
[August 3] hearing to keep [Terrance] to herself, even though she knew that [Maxwell]
had not abandoned [Terrance] and that it was perfectly possible for her to communicate
with [Maxwell]."
In addition to these factors underlying the continuing-relationship
determination, the superior court also relied on the fact that "[Stephanie] made . . . [a]
very negative allegation[] for which she had almost no support" when she "contended
that [Maxwell] was cooking and using methamphetamine." Stephanie had alleged at trial
that she had noticed a powerful chemical and diesel-like smell coming from Terrance's
clothing when she picked him up at the airport and that she thought that Maxwell had
been manufacturing methamphetamine with Terrance in the garage. The superior court
determined that Stephanie had almost no basis for this claim.
Stephanie filed a number of motions for post-order relief. She filed a
motion to reconsider the custody order that also included a motion for Judge Eric Smith
to recuse himself. The motion to recuse was denied, and the court granted limited
reconsideration on certain issues, including the accusation of methamphetamine
manufacturing and Maxwell's child support arrears. The superior court concluded that
it had not violated this court's remand instructions on both issues, maintaining that (1)
the Stephanie W. protections for allegations do not extend to accusations of
manufacturing methamphetamine because that does not constitute domestic violence;
-8- 6869
----------------------- Page 9-----------------------
(2) because Stephanie was now found to provide more stability than Maxwell the
supreme court's instructions were moot; and (3) Maxwell could adequately provide for
the needs of the child. Stephanie then filed an Alaska Civil Rule 59 motion to reopen
evidence, arguing in relevant part that she should be allowed to present evidence of her
experience detecting smells resulting from methamphetamine manufacturing because she
was reluctant to present such evidence in the hearing for fear of being punished by the
superior court. The superior court denied her motion to reopen evidence stating that the
evidence was not new and that Stephanie could have presented it at trial. Finally,
Stephanie filed a motion to reconsider the court's order denying her Rule 59 motion to
reopen evidence, arguing for the first time that the superior court erred by refusing to
deem admitted Stephanie's unanswered requests for admission. The superior court
denied Stephanie's motion because she did not seek to provide new evidence and she
relied on an argument not raised in her initial Civil Rule 59 motion.
Stephanie appeals. She raises five primary points on appeal. Three of her
points on appeal deal with issues of civil procedure, discovery, and evidence relating to
the procedure on remand: She alleges that the superior court abused its discretion by
refusing to accept unanswered requests for admission as conclusively established in her
favor under Alaska Civil Rule 36; she alleges that the superior court abused its discretion
by denying her motion to establish certain custody factors and key facts in her favor as
discovery sanctions under Civil Rule 37(d); and she alleges that the superior court
abused its discretion by refusing to enforce its own order for Maxwell to produce
telephone records. The final two points on appeal address the superior court's
determination of two custody factors in light of this court's remand instructions:
Stephanie argues that the superior court abused its discretion by failing to consider
Maxwell's child support arrears in its stability determination, and Stephanie also argues
that the superior court abused its discretion by holding against her in the continuing-
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----------------------- Page 10-----------------------
relationship factor her allegations that Maxwell was manufacturing methamphetamine
with Terrance present.
III. STANDARD OF REVIEW
A. Standards Relevant To The Discovery Issues
"The trial court's decision to allow or disallow the withdrawal of an
admission [under Civil Rule 36] is subject to reversal for abuse of discretion."15
"The superior court generally has broad discretion in sanctioning discovery
violations [under Civil Rule 37], 'subject only to review for abuse of discretion.' But
'the trial court's discretion is limited when the effect of the sanction it selects is to
impose liability on the offending party, establish the outcome of or preclude evidence on
a central issue, or end the litigation entirely.' "16
"When interpreting the Civil Rules we exercise our independent judgment,
adopting the rule of law that is most persuasive in light of reason, precedent, and
policy."17
B. Standards Relevant To Custody Factor Issues
"A trial court's determination of custody will be set aside only if the entire
record demonstrates that the controlling findings of fact are clearly erroneous or that the
15 Hughes v. Bobich , 875 P.2d 749, 755 (Alaska 1994) (citing City of Kenai
v. Ferguson , 732 P.2d 184, 190 (Alaska 1987)).
16 Hikita v. Nichiro Gyogyo Kaisha, Ltd. , 12 P.3d 1169, 1175 (Alaska 2000)
(quoting Sykes v. Melba Creek Mining, Inc., 952 P.2d 1164, 1169 (Alaska 1998))
(footnotes omitted).
17 DeNardo v. ABC Inc. RVs Motorhomes , 51 P.3d 919, 922 (Alaska 2002)
(quoting Peter v. Progressive Corp., 986 P.2d 865, 867 (Alaska 1999)) (internal
quotation marks omitted).
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----------------------- Page 11-----------------------
18
trial court has abused its discretion." "A finding of fact is clearly erroneous only when
a review of the entire record leaves us with a definite and firm conviction that the trial
19
court has made a mistake." "An abuse of discretion has occurred if the trial court
considered improper factors in making its custody determination, failed to consider
statutorily mandated factors, or assigned disproportionate weight to particular factors
while ignoring others."20
"Whether a lower court on remand has correctly applied our mandate is a
question of law which we review de novo."21
IV. DISCUSSION
A. Stephanie's Three Arguments Relating To Discovery On Remand
1. Stephanie failed to preserve for appeal her argument that the
superior court's failure to deem unanswered requests for
admission conclusively admitted under Civil Rule 36 was an
abuse of discretion.
Stephanie argues that her three requests for admission to which Maxwell
never responded should have received conclusive effect under Civil Rule 3622
and that
18 Melendrez v. Melendrez , 143 P.3d 957, 959 (Alaska 2006) (internal
quotation marks omitted).
19 Evans v. Evans , 869 P.2d 478, 479 (Alaska 1994).
20 Id. at 479-80.
21 Moeller-Prokosch v. Prokosch , 53 P.3d 152, 154 (Alaska 2002) (internal
quotation marks omitted).
22 Alaska Rule of Civil Procedure 36 establishes a procedure for parties to
request admission of the truth of any matter within the general scope of discovery under
Civil Rule 26(b)(1). Rule 36 also provides that "[t]he matter is admitted unless . . . the
party to whom the request is directed serves upon the party requesting the admission a
written answer or objection addressed to the matter. . . . The party who has requested the
(continued...)
-11- 6869
----------------------- Page 12-----------------------
the superior court erred by denying that conclusive effect. She specifically argues that
Rule 36 is "self-executing," and that unanswered requests for admission should be
automatically deemed admitted upon non-receipt of a timely response. She maintains
that the superior court "had no discretion to ignore [Stephanie's] unanswered Rule 36
23
requests," and that Rule 36 permits withdrawal of deemed admissions only on motion.
But Stephanie failed to preserve this argument for appeal because she did
not timely present it to the superior court. In order to preserve an issue for appeal,
24
But "[a]n issue raised for the first
appellants "must show they raised the issue below."
time in a motion for reconsideration is not timely" and is therefore not preserved for
25
appeal. Because Stephanie did not raise her deemed-admission argument before the
superior court until her motion to reconsider the superior court's order denying her Civil
22(...continued)
admissions may move to determine the sufficiency of the answers or objections. Unless
the court determines that an objection is justified, it shall order that an answer be served."
Alaska R. Civ. P. 36(a). Finally, Rule 36 provides that "[a]ny matter admitted under this
rule is conclusively established unless the court on motion permits withdrawal or
amendment of the admission." Alaska R. Civ. P. 36(b).
23 Emphasis in original.
24
Stadnicky v. Southpark Terrace Homeowner's Ass'n, 939 P.2d 403, 405
(Alaska 1997).
25 Id. (citing Miller v. Miller , 890 P.2d 574, 576 n.2 (Alaska 1995) ("[T]he
issue was improperly raised in the motion for reconsideration, since it had never
previously been raised.")); see also McCarter v. McCarter , 303 P.3d 509, 513 (Alaska
2013) ("[Appellant] made this statutory argument for the first time in his motion for
reconsideration, and it is therefore waived."); Howe v. Howe , Mem. Op. & J. No. 1306,
2008 WL 1914361, at *1 n.4 (Alaska, Apr. 30, 2008) (characterizing Stadnicky as
"noting that issue raised for first time in motion for reconsideration is untimely and
insufficient to preserve claim for appeal").
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26
Rule 59 motion to reopen evidence, she cannot raise it on appeal. We decline to reach
the merits of Stephanie's unpreserved argument and note that the superior court did not
commit plain error in this case.27
26 Despite Stephanie's statement to the contrary in her brief in this court,
Stephanie's motion for Rule 37(d) relief did not request that the court deem admitted
Stephanie's unanswered requests for admission. Nor did Stephanie ever raise this issue
during the hearings, in her motion for reconsideration of the custody order, or in her Rule
59 motion to reopen evidence.
27
"[W]aiver will not be found where an issue raises plain error." Fernandes
v. Portwine , 56 P.3d 1, 9 n.27 (Alaska 2002) (citing Hoffman Constr. Co. of Alaska v.
U.S. Fabrication & Erection, Inc. , 32 P.3d 346, 355 n.29 (Alaska 2001)). But here, no
"obvious mistake has been made which creates a high likelihood that injustice has
resulted." Paula E. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. ,
276 P.3d 422, 436 (Alaska 2012) (quoting D.J. v. P.C. , 36 P.3d 663, 668 (Alaska 2001)).
Without engaging in a full merits analysis, we note that implicit in
Rule 36's structure is a requirement that the party seeking deemed admissions must make
a timely request that the unanswered requests be deemed admitted. For instance,
Rule 36's procedure for determining the sufficiency of an answer or objection to a
request for admission puts the onus on the party seeking the admission to make an
appropriate request before the court's duty under the Rule is triggered. See Alaska R.
Civ. P. 36(a). This is confirmed by the more general proposition that "in the vast
majority of instances, the discovery system will be self-executing." Hikita v. Nichiro
Gyogyo Kaisha, Ltd., 12 P.3d 1169, 1175 (Alaska 2000) (quoting 7 J
AMES WM . MOORE
ET AL
., MOORE 'S FEDERAL PRACTICE ¶ 37.90, at 37-141 (3d ed. 1997)). We also note
that in all of our prior cases discussing Rule 36, the party seeking unanswered requests
for admission to be deemed admitted has always made such a request in the superior
court. See, e.g., Gladden v. City of Dillingham, Mem. Op. & J. No. 1253, 2006 WL
1668029, at *1 (Alaska, June 14, 2006) ("The city further moved to have its unanswered
requests for admission deemed admitted."); Kaiser v. Sakata , 40 P.3d 800, 802 (Alaska
2002) ("[T]he defendants moved for summary judgment. They argued that because
Kaiser had failed to timely respond to discovery requests, the defense's requests for
admission must be deemed admitted . . . ."); Hughes v. Bobich , 875 P.2d 749, 751
(Alaska 1994) ("In his summary judgment motion, Bobich argued that, under Alaska
Civil Rule 36(a), the Hughes' failure to file a timely response to his request should be
(continued...)
-13- 6869
----------------------- Page 14-----------------------
2. The superior court did not abuse its discretion by denying
Stephanie's Rule 37(d) motion for discovery sanctions.
Stephanie argues that the superior court abused its discretion by denying
28
her motion under Civil Rule 37(d) to sanction Maxwell's failure to respond to
Stephanie's discovery requests. Her Rule 37(d) motion requested that the superior court
establish the stability factor in Stephanie's favor, find that Maxwell was unwilling to
foster a close and continuing relationship between Terrance and Stephanie, and preclude
Maxwell from introducing contrary evidence on those two issues.
Under Rule 37, "the trial court's discretion [to sanction discovery
violations] is limited when the effect of the sanction it selects is to . . . establish the
29
In
outcome of or preclude evidence on a central issue, or end the litigation entirely."
particular, "the trial court's discretion to impose [litigation-ending] sanctions is narrowly
27(...continued)
construed as an admission that they had already been paid."); Pletnikoff v. Johnson , 765
P.2d 973, 974-75 (Alaska 1988) ("Johnson moved for partial summary judgment . . .
argu[ing] that, since Pletnikoff did not respond to the requests, the requests were deemed
admitted and therefore no genuine issue of material fact remained on the issue of
damages."); City of Kenai v. Ferguson, 732 P.2d 184, 189 (Alaska 1987) ("[T]he City
moved for summary judgment, relying on the requests for admissions being deemed
admitted because of Ferguson's failure to respond.").
28
Alaska Rule of Civil Procedure 37(d) provides, "If a party . . . fails . . . to
serve answers or objections to interrogatories submitted under Rule 33 . . . or . . . to serve
a written response to a request for inspection submitted under Rule 34, . . . the court in
which the action is pending on motion may make such orders in regard to the failure as
are just . . . ."
29 Hikita , 12 P.3d at 1175 (quoting Sykes v. Melba Creek Mining, Inc., 952
P.2d 1164, 1169 (Alaska 1998) (internal quotation marks omitted)).
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----------------------- Page 15-----------------------
limited to extreme situations," and such sanctions cannot be imposed "where an
alternative remedy would suffice to make the adverse party whole."30
Here, the superior court did not abuse its discretion by denying Stephanie's
Rule 37(d) motion for discovery sanctions. Stephanie did not seek an order compelling
production in response to her unanswered interrogatories and requests for production
or other, less-draconian options before filing her Rule 37(d) motion seeking to establish
key custody factors in her favor. Indeed, it is likely under these facts that the superior
court would have abused its discretion had it granted such litigation-ending sanctions
without first exploring alternative remedies.
3. Stephanie failed to preserve her argument that the superior
court abused its discretion by not enforcing an order compelling
Maxwell to produce his telephone records.
Stephanie argues that the superior court abused its discretion by first
ordering Maxwell to produce certain telephone records31 and then not enforcing its own
order when Maxwell did not produce the records.
As with her Rule 36 argument above, Stephanie failed to timely present this
argument to the superior court. In order to preserve an issue for appeal, appellants "must
32 "An issue raised for the first time in a motion for
show they raised the issue below."
30 Hughes , 875 P.2d at 752-53.
31 Maxwell had indicated that he was attaching telephone records to his
motion to the superior court following the first hearing. He did not attach the records
with the other exhibits. The superior court stated at the subsequent trial-setting
conference, "You need to supplement what you filed, because . . . the phone records were
not attached to your paperwork. . . . Since you said it was there you need to supply it."
Maxwell never supplied his phone records.
32 Stadnicky, 939 P.2d at 405.
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33
reconsideration is not timely" and is therefore not preserved for appeal. Here,
Stephanie did not raise this argument with the superior court until her motion to
reconsider the superior court's order denying her Rule 59 motion to reopen evidence.
The superior court correctly concluded that the argument was not timely raised. We
decline to reach the merits of Stephanie's unpreserved argument and note that the
superior court did not commit plain error in this case.34
B. The Superior Court Did Not Abuse Its Discretion Or Clearly Err In
Awarding Primary Physical Custody To Maxwell.
1. The superior court did not abuse its discretion in its
reconsideration of the stability factor, AS 25.24.150(c)(5), on
remand.
Alaska Statute 25.24.150(c)(5) requires a court determining custody to
consider "the length of time the child has lived in a stable, satisfactory environment and
the desirability of maintaining continuity." The superior court's initial order granting
Maxwell primary physical custody concluded that this factor favored Maxwell because
he had a stable job and living situation while Stephanie worked four 12-hour shifts 70
miles from home, which "provide[d] some roadblocks in terms of her working with the
kids." On review in this court, we were "troubled by the reliance on Maxwell's more
stable economic status compared to Stephanie's long commute and hard working hours
33 Id. (citing Miller v. Miller , 890 P.2d 574, 576 n.2 (Alaska 1995)).
34 "[W]aiver will not be found where an issue raises plain error." Fernandes
v. Portwine , 56 P.3d 1, 9 n.27 (Alaska 2002) (citing Hoffman Constr. Co. of Alaska v.
U.S. Fabrication & Erection, Inc. , 32 P.3d 346, 355 n.29 (Alaska 2001)). But here, no
"obvious mistake has been made which creates a high likelihood that injustice has
resulted." Paula E. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. ,
276 P.3d 422, 436 (Alaska 2012) (quoting D.J. v. P.C. , 36 P.3d 663, 668 (Alaska 2001)).
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----------------------- Page 17-----------------------
while ignoring Maxwell's failure to pay . . . child support over the course of his child's
35 36
life." We remanded for reconsideration of the stability factor.
Stephanie argues that the superior court improperly questioned this court's
remand instructions. In its order, the superior court stated: "With all due respect to the
Alaska Supreme Court, the court . . . notes that it has had some difficulty implementing
the Court's orders on remand" because "the court simply can find no support in the
record of the first hearing for the statement that [Stephanie] chose her nursing job in part
because she had not been receiving child support." The superior court proceeded to
characterize Stephanie's testimony at the hearing on remand as indicating that she took
the nursing job because "it paid well and was close to family."
We can understand why the superior court's remarks questioning the basis
of this court's ruling could have caused some confusion and might have been troubling
to Stephanie as a successful appellate litigant. But the superior court's remarks are
irrelevant to the question raised in this appeal because the superior court determined that
the stability factor now favors Stephanie rather than Maxwell. As the superior court
concluded on remand, "the factual predicate for the Court's decision [in Stephanie W.]
. . . is moot" because Stephanie "no longer is working the grueling hours that had
concerned this court, and she is living near where she works."37
35 Stephanie W. v. Maxwell V., 274 P.3d 1185, 1193 (Alaska 2012).
36 Id.
37 Cf. State v. Oriental Fire & Marine Ins. Co. , 776 P.2d 776, 778 n.4 (Alaska
1989) (noting that a change in a factual predicate to a motion for remand - in that case,
a stipulation by the parties to dismiss the relevant complaint - "render[s] moot the
question raised on remand").
Because we hold that the superior court did not abuse its discretion in its
(continued...)
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2. The superior court did not abuse its discretion in determining
that the continuing-relationship factor, AS 25.24.150(c)(6),
favors Maxwell.
Alaska Statute 25.24.150(c)(6) requires a court determining custody to
consider "the willingness and ability of each parent to facilitate and encourage a close
and continuing relationship between the other parent and the child." The statute goes on
to carve out an exception, directing the court not to "consider this willingness and ability
if one parent shows that the other parent has sexually assaulted or engaged in domestic
violence against the parent or a child, and that a continuing relationship with the other
38
parent will endanger the health or safety of either the parent or the child."
In the first custody hearing in the superior court, Stephanie expressed her
concern about Terrance's sexually aggressive and age-inappropriate behaviors after he
39
Stephanie further
returned to New Mexico from a year in Alaska with Maxwell.
claimed that Terrance told her that he had suffered sexual abuse from Maxwell in
40
Alaska. Stephanie notified the police and pressed the issue in her custody dispute with
41
Maxwell as a reason to grant her sole custody. The superior court determined that
37(...continued)
handling of the stability factor and do not remand, Stephanie's argument that Judge
Smith "departed from the role of an impartial fact-finder and instead assumed the role
of [Maxwell's] advocate" and should therefore be disqualified from hearing the case on
remand is also moot.
38 AS 25.24.150(c)(6).
39 Stephanie W., 274 P.3d at 1188.
40 Id.
41 Id.
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42
Stephanie had not proved abuse by a preponderance of the evidence. The superior
court's initial order granting Maxwell primary physical custody concluded that Maxwell
was more likely than Stephanie to foster a relationship between Terrance and the other
parent in part because of Stephanie's continued anxiety relating to the alleged but
43
unproved sexual abuse.
44
In Stephanie W., we noted that AS 25.24.150(c)(6)'s explicit exception
was "silent on the procedure to be followed if the court finds that abuse has not been
shown," and we quoted Stephanie's argument "that it would be bad policy to hold her
good faith belief that Maxwell sexually abused Terrance against her" because "no parent
in their right mind would ever make a good faith report of domestic violence or sexual
45
abuse" in the future. We concluded that "[i]n light of the apparent good-faith basis of
Stephanie's allegations, . . . the superior court should re-weigh the 'willingness to allow
a close and continuing relationship' factor. On remand, the court should not consider
this factor against Stephanie unless she has continued her unwillingness to facilitate such
a relationship in the period after the superior court made its evidence-based finding that
Maxwell had not abused Terrance."46
On remand, the superior court determined that because Terrance "has
admitted he lied about the sexual abuse," Stephanie "has no reason to be concerned about
this issue any more, thereby rendering the allegations irrelevant to the close relationship
42 Id.
43 Id. at 1188-89.
44 Id.
45 Id. at 1191.
46 Id.
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factor." But in the hearing on remand, Stephanie made another allegation that Maxwell
was endangering Terrance. Stephanie alleged that she had noticed a powerful chemical
and diesel-like smell coming from Terrance's clothing when she picked him up at the
airport and that she thought that Maxwell had been manufacturing methamphetamine
with Terrance in the garage.
The superior court concluded that "[t]he close relationship factor . . .
strongly favors [Maxwell]" for a number of reasons, including the fact that Stephanie
"made . . . [a] very negative allegation[] for which she had almost no support." "Her
only basis for this claim was that [Terrance] smelled of chemicals when he arrived at the
airport this summer. But [Terrance] himself explained what was going on - [Maxwell]
was making fuel for his car. And [Maxwell] did not present at all at trial as a person on
methamphetamine." The superior court later concluded that "her belief about the meth
lab was emblematic of her general proclivity to assume the worst about [Maxwell]." The
superior court denied the applicability of the Stephanie W. rule in this case because
Stephanie's allegation "has no connection to any domestic violence, much less sexual
abuse, and hence is not precluded by AS 25.24.150(c)(6)."
Stephanie argues in this court that the superior court has repeated its
original error of holding against her a good-faith allegation of the other parent acting in
a way that could bring harm to the child. Stephanie argues that her methamphetamine-
manufacturing allegation should receive the benefit of protection under Stephanie W.
She offers a complex argument interpreting "domestic violence" as used in
AS 25.24.150(c)(6) to include allegations of actions constituting the crime of "reckless
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47
endangerment" under AS 11.41.250 and further argues that her allegations, if proved
correct, would constitute reckless endangerment and thus domestic violence.
We do not reach the question of statutory interpretation raised by Stephanie
because it is unnecessary for us to do so. Even without the specific statutory protections
provided by AS 25.24.150(c)(6), it is common sense that in a custody proceeding, good-
faith allegations by one parent against the other parent regarding behavior relevant to the
custody decision and the child's best interests should not be held against the reporting
parent in the superior court's continuing-relationship determination where the allegations
are based on supporting evidence. That supporting evidence might be found in the
48
court's objective credibility determination or in extrinsic evidence. In making the
decision whether a reporting parent's good-faith but unproved allegations can be
considered in the continuing-relationship determination, the superior court must balance
two competing goals: the desire of the court to encourage good-faith, objectively credible
reports of parental behavior relevant to the custody dispute, and the need to guard against
47 AS 25.24.150(c)(6)'s exception is triggered for "domestic violence" by "the
other parent . . . against the parent or a child." AS 25.90.010 defines "domestic
violence" as used in that title by cross-referencing "the meanings given in
AS 18.66.990." In turn, AS 18.66.990(3)(A) provides that "domestic violence" includes
"a crime against the person under AS 11.41" that is committed "by a household member
against another household member." Finally, AS 11.41.250(a) makes "reckless
endangerment" a crime against the person and specifies that "[a] person commits the
crime of reckless endangerment if the person recklessly engages in conduct which
creates a substantial risk of serious physical injury to another person."
48
Both types of evidence were at play in Stephanie W., where we noted that
"the superior court acknowledged that the allegations of sexual abuse were 'troubling'
and that neither party had been able to demonstrate what had caused Terrance to act out
sexually" and that "Stephanie had adduced expert opinion testimony from 'a highly
experienced forensic interviewer of children' and from a children's counselor who were
generally supportive of Stephanie's suspicions." 274 P.3d at 1191.
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false reports and to consider a parent's actual unwillingness to foster a relationship with
the other parent. As with other determinations under the custody statute, we will review
the superior court's balancing determination for abuse of discretion.
In this case, if Stephanie's allegation were true and Maxwell had been
manufacturing methamphetamine in Terrance's presence, that would certainly have been
relevant information for the ultimate custody determination. Even without the statutory
protection that we interpreted in Stephanie W., it would be inappropriate to fault a parent
for reporting such a dangerous situation if the allegations were made in good faith and
were sufficiently supported to merit protection in the balancing test. Here, we cannot
conclude that the superior court abused its discretion in determining that Stephanie had
not presented sufficient evidence in support of her allegation to warrant removing the
unfounded allegation from consideration in the continuing-relationship factor. As the
superior court reasoned, Stephanie had "almost no support" for her allegation, testifying
only that she observed a chemical smell on Terrance's clothing. The superior court did
not abuse its discretion in concluding that "she did not have an adequate basis for
[concluding that Maxwell was manufacturing methamphetamine with Terrance] and that
her belief about the meth lab was emblematic of her general proclivity to assume the
worst about [Maxwell]."
V. CONCLUSION
For these reasons, the superior court's orders are AFFIRMED in all
respects.
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