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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Houston v. Wolpert (9/5/2014) sp-6950
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
GARY JAY HOUSTON, )
) Supreme Court No. S-15232
Appellant, )
) Superior Court No. 3PA-10-00959 CI
v. )
) O P I N I O N
MEREDITH JANE WOLPERT, )
) No. 6950 - September 5, 2014
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Palmer, Gregory Heath, Judge.
Appearances: Regina Largent, Largent Law, LLC, Soldotna,
for Appellant. John Parsi, Law Offices of Kenneth Goldman,
PC, Palmer, for Appellee.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and
Bolger, Justices.
BOLGER, Justice.
I. INTRODUCTION
Upon dissolution of their marriage, a father and a mother agreed to give
primary custody to the mother and "open and liberal visitation" to the father. The father
filed a motion for modification of custody, alleging the mother had unreasonably
restricted his visitation. The superior court found the mother had been uncooperative,
but concluded it was in the best interests of the child to remain in the mother's custody
with a specific visitation schedule for the father. The father appeals the superior court's
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decision, arguing the superior court abused its discretion when it did not award him
custody. He also appeals the superior court's denial of his motion for attorney's fees and
costs. We conclude there was no abuse of discretion in the custody decision, but we
must remand the attorney's fee issue for further findings.
II. FACTS AND PROCEEDINGS
Gary Houston and Meredith Wolpert dissolved their marriage in April
2010. They agreed Meredith would have primary custody of their daughter, born in
2007, subject to Gary's "open and liberal" visitation.
Meredith moved to Soldotna about seven months after the dissolution.
Once she moved, Meredith restricted Gary's visits to only one weekend a month in
Soldotna. Gary could not afford many overnight visits in Soldotna, which meant he
could only visit his daughter for the day. A little more than two years after the
dissolution, Gary moved to Soldotna to be closer to his daughter. But even though Gary
now lived in the area, Meredith only allowed one weekend overnight visit per month.
In August 2012 Gary filed a motion to modify custody. Gary sought
primary physical and sole legal custody and alleged Meredith "arbitrarily impose[d]
severe limitations upon [his] visitation" - enough "to substantially interfere with the
parent-child relationship." He also sought temporary orders asking for their daughter to
have equal access to both parents in the interim.
The parties disputed the circumstances of their interactions and the reasons
the visitations were so infrequent. Gary argued Meredith interfered with his visitation
by refusing to let him see their daughter and by refusing to respond to his
communications. Meredith attributed the difficulty of scheduling visitation to conflicting
availability and implied Gary did not make enough of an effort to see their daughter.
The superior court referred the matter to a family court master and
scheduled a hearing regarding interim visitation. At the hearing, the master heard
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arguments from both sides and found that, while the parties needed a visitation schedule,
there was no need for a modification of custody.
Gary filed an objection to the master's report, and the superior court
rejected the master's recommendations. The superior court determined Gary had shown
a substantial change in circumstances and was "entitled to a hearing to address the best
interests of [the child]." The court again referred the case to the master to hold a hearing
on the motion to modify custody.
At the end of the custody modification hearing, the master expressed
concern about Meredith's unreasonable attitude toward Gary's visitation. But the master
ultimately concluded Meredith should retain primary custody because she had a better
history of providing the child with continuity and a stable home.
In his written findings, the master stated Gary had not been an involved
parent, although Gary's parenting had improved. The master noted Meredith had been
the child's primary caregiver for the child's entire life, and opined that Meredith could
provide more appropriate boundaries and structure for the child. The master found
Meredith had provided a stable environment for her daughter. The master had concerns
about Meredith's willingness to facilitate a relationship between Gary and their daughter
because Meredith had exercised "excessive control" and displayed "unreasonable
concerns" over visitation. But the master recognized Meredith had provided Gary with
visitation consistent with the interim visitation plan and seemed diligent about following
rules. The master also recommended Meredith retain legal custody since Gary and
Meredith did not seem to communicate or cooperate well with one another.
Gary filed an objection to the master's recommendations. The superior
court concluded Gary's arguments "center[ed] on the concern that Meredith ha[d]
willfully and consistently interfered with his custodial time in the past, including denying
him overnight visitation for over 300 consecutive days." The court agreed with the
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master that continuing primary custody with Meredith would provide the child with
stability and would best meet her "physical, emotional, and spiritual needs." The
superior court ordered visitation on two weekends a month, from Thursday evening to
Sunday evening, and every Wednesday evening from 5:00 p.m. to 7:00 p.m.
Following the superior court's decision, Gary filed a motion for attorney's
fees and costs. The superior court denied Gary's motion for fees and costs without
making specific findings. Gary now appeals to this court.
III. STANDARD OF REVIEW
We will uphold a superior court's custody and visitation determinations
"unless the record shows that its controlling findings of fact are clearly erroneous or the
1 "A finding of fact is clearly erroneous when a review of
court abused its discretion."
the record leaves us with a definite and firm conviction that a mistake has been made."2
And a superior court abuses its discretion when it "consider[s] improper factors in
determining custody, fail[s] to consider statutorily mandated factors, or assign[s]
disproportionate weight to certain factors while ignoring others."3
IV. DISCUSSION
The superior court has broad discretion when determining the best interests
of a child in a custody modification.4 When considering statutory best interests factors,
the trial court need not make express findings on all statutory
factors; instead, its findings "must either give us a clear
1 Borchgrevink v. Borchgrevink , 941 P.2d 132, 134 (Alaska 1997) (citing
Evans v. Evans , 869 P.2d 478, 479 (Alaska 1991)).
2 Blanton v. Yourkowski, 180 P.3d 948, 951 (Alaska 2008) (quoting
Borchgrevink , 941 P.2d at 134) (internal quotation marks omitted).
3 Id. (citing Borchgrevink , 941 P.2d at 134).
4 Rego v. Rego , 259 P.3d 447, 452 (Alaska 2011); see AS 25.24.150(c).
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indication of the factors which the superior court considered
important in exercising its discretion or allow us to glean
[5]
from the record what considerations were involved."
In this case, the master identified three factors that were particularly important in
determining custody: "the capability and desire of each parent to meet [the child's]
needs";6 "the length of time the child had lived in a stable, satisfactory environment and
the desirability of maintaining continuity";7 and "the willingness and ability of each
parent to facilitate and encourage a close and continuing relationship between the other
8 Gary appeals the superior court's findings on the stability and
parent and the child."
continuing relationship factors as well as the court's decision on the award of attorney's
fees.
A. The Court Did Not Abuse Its Discretion When It Concluded The
Stability Factor Favored The Mother.
In a custody determination, the superior court must consider "the length of
time the child has lived in a stable, satisfactory environment and the desirability of
maintaining continuity."9 The court, in its stability analysis, may consider circumstances
10 In this case,
affecting the child's geographic, emotional, and relational environment.
5 Chesser v. Chesser-Witmer, 178 P.3d 1154, 1158 (Alaska 2008) (quoting
Smith v. Weekley, 73 P.3d 1219, 1225 (Alaska 2003)).
6 AS 25.24.150(c)(2).
7 AS 25.24.150(c)(5).
8 AS 25.24.150(c)(6).
9 AS 25.24.150(c)(5).
10 See, e.g., Blanton v. Yourkowski, 180 P.3d 948, 954 (Alaska 2008) ("The
continuity factor includes both emotional stability and geographic stability."); Melendrez
v. Melendrez, 143 P.3d 957, 963 (Alaska 2006) (quoting McQuade v. McQuade , 901
(continued...)
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----------------------- Page 6-----------------------
the master found Meredith had given the child a "stable, satisfactory environment for a
long time," and stated that it was "desirable to maintain this continuity." The master also
noted Meredith had been the child's primary caregiver, and that she had provided a
stable home for a longer period of time than Gary had.
Gary challenges the superior court's findings on the stability factor. He
argues the court abused its discretion because it never "offered any commentary or
findings on [Gary's] ability to maintain stable and satisfactory relations between himself
and the child." He relies on Meier v. Cloud to contend Alaska law "commands a
comprehensive inquiry into each parent's respective ability to maintain stable and
11
satisfactory relations between themselves and the child."
But Meier is not directly applicable here. In Meier , the parents shared legal
and physical custody and lived in the same community before the mother decided to
12
move to Seattle with her new husband. We explained that when parents transition from
living in the same community and sharing custody to one relocating to another state, "a
court considering the child's need for continuity and stability . . . must examine not only
the desirability of maintaining geographical continuity, but also the importance of
10(...continued)
P.2d 421, 426 (Alaska 1995)) (upholding the court's decision to weigh sibling
relationship as an essential component of maintaining the emotional continuity and
stability of a child's home); Barrett v. Alguire , 35 P.3d 1, 9 (Alaska 2001) (upholding
the finding that "maintaining the children's relationships with their school, community
of friends and family, the cultural community, and their mother outweighed maintaining
the relationship with their father.").
11 34 P.3d 1274, 1279 (Alaska 2001) (quoting McQuade , 901 P.2d at 426)
(internal quotation marks omitted).
12 Id. at 1275.
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13
maximizing relational stability." And in that context, the continuity and stability factor
requires an examination of "each parent's respective ability to maintain stable and
satisfactory relations between themselves and the child."14
In Evans v. Evans , we held that the stability and continuity factor should
be assessed not only in relation to each parent "but in relation to the totality of the
circumstances [the children] were likely to encounter in their respective parents'
15
homes." We concluded it was not an abuse of discretion to consider the potentially
negative emotional consequences the children might have suffered if they had been
required to live in their mother's new marital residence.16 Similarly in this case, the
superior court considered that the child had been in Meredith's care for most of her life
and that this stability would be disrupted if custody were awarded to Gary. This
consideration was not unreasonable.
In a related argument, Gary contends the court improperly gave preference
to Meredith's role as the primary caregiver. Gary correctly notes that there is no
automatic custody preference for the primary caregiver.17 But the superior court may
properly consider which parent was the child's primary caregiver as a circumstance
13 Id. at 1279.
14 Id. (quoting McQuade , 901 P.2d at 426) (internal quotation marks omitted).
15 869 P.2d 478, 482 (Alaska 1994).
16 Id. at 483.
17 Blanton v. Yourkowski, 180 P.3d 948, 953 (Alaska 2008) (citing Elliott v.
Settje, 27 P.3d 317, 320 (Alaska 2001)); I.J.D. v. D.R.D. , 961 P.2d 425, 430 (Alaska
1998); Evans , 869 P.2d at 483 n.4; McDanold v. McDanold , 718 P.2d 467, 470 n.4
(Alaska 1986).
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18
relevant to the best interests analysis. In this case, Meredith has had primary custody
since the dissolution of the marriage and has provided a stable, satisfactory home. We
find no abuse of discretion in the court's consideration of Meredith's status as a primary
caregiver.
B. The Court Did Not Abuse Its Discretion When It Weighed The
Continuing Relationship Factor.
Gary argues the court abused its discretion by failing to give adequate
weight to the "continuing relationship" factor: "the willingness and ability of each parent
to facilitate and encourage a close and continuing relationship between the other parent
and the child."19 On this issue, the master expressed
concerns with regards to Meredith's being willing and able to
facilitate and encourage a close and continuing relationship
between Gary and [his daughter]. Prior to the September 7,
2012 hearing, Meredith did not make visitation easy for Gary.
She exercised excessive control and unreasonable concerns
for [the child's] safety with Gary.
The superior court adopted this finding and further stated Meredith had "manipulated the
process" and "restricted Gary's visitation."
Gary primarily argues this factor should have been dispositive, and the
court should have granted Gary primary physical custody based on Meredith's
misconduct. We have held that "[t]he superior court abuses its discretion if it . . . fails
to consider statutorily mandated factors, or assigns disproportionate weight to particular
20
factors while ignoring others." But there is no rule giving automatic preference to any
18 See Veselsky v. Veselsky, 113 P.3d 629, 635 (Alaska 2005).
19 AS 25.24.150(c)(6).
20 Nancy M. v. John M. , 308 P.3d 1130, 1133 (Alaska 2013) (quoting
(continued...)
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single factor. Rather, the superior court's findings must clearly indicate which factors
it "considered important in exercising its discretion or allow us to glean from the record
21
what considerations were involved."
In this case, the master clearly identified the best interests factors he
considered most important. And Gary does not challenge the court's finding that
Meredith followed the interim visitation order. Based on this finding, the superior court
could have reasonably concluded that a permanent visitation schedule would be
sufficient to ensure that Meredith did not repeat her previous misconduct and that she
would facilitate Gary's relationship with the child. We conclude there was no abuse of
22
discretion on this issue.
C. The Court Did Not Abuse Its Discretion In Other Aspects Of The
Custody Order.
Gary makes several related arguments challenging the superior court's
custody and visitation determinations. First, Gary argues the court abused its discretion
when it denied him primary custody because the court had found a change in
circumstances based on the parties' inability to communicate about or agree on visitation.
But the court's conclusion that there was a change in circumstances only provided the
basis for a full custody modification hearing. This conclusion did not control the best
20(...continued)
Stephanie F. v. George C., 270 P.3d 737, 745 (Alaska 2012)) (internal quotation marks
omitted).
21 Chesser v. Chesser-Witmer, 178 P.3d 1154, 1158 (Alaska 2008) (quoting
Smith v. Weekley, 73 P.3d 1219, 1225 (Alaska 2003)) (internal quotation marks omitted).
22 We are not convinced by Gary's argument that the superior court
committed clear error when it found Meredith to be uncooperative rather than
intentionally interfering with Gary's visitation. The superior court's findings are
supported by the record.
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interests analysis; at that stage of the analysis, the inability of the parents to communicate
was simply one of many statutory factors the court was required to consider.
Gary also argues the superior court abused its discretion when it denied him
joint legal custody. But Gary did not request joint custody during the custody
modification proceeding; he requested sole legal custody. And even if Gary had
requested joint custody, such an award "is only appropriate when the parents can
23
Joint legal custody may be
cooperate and communicate in the child's best interest."
denied if the parents cannot communicate effectively.24 In this case, the record supports
the master's finding that the parties could not cooperate sufficiently to allow joint
custody.
Gary also argues the visitation schedule is unreasonably restrictive. The
court-ordered schedule consists of Wednesday evening and weekend visits. This
schedule was an increase in Gary's visitation, and it reasonably addressed the court's
concern with stability. We conclude this schedule was not an abuse of discretion.
D. The Court Should Have Explained Why It Denied Gary's Motion For
Attorney's Fees.
Gary argues the court erred when it denied his motion for attorney's fees.
Under AS 25.20.115, the court must "consider the relative financial resources of the
parties and whether the parties have acted in good faith" when making an attorney fee
23 Farrell v. Farrell , 819 P.2d 896, 899 (Alaska 1991).
24 See Co v. Matson, 313 P.3d 521, 524-26 (Alaska 2013) (awarding sole legal
custody to the mother even though both were parents of "considerable talent and ability"
because the mother and the father could not communicate with each other); Jaymot v.
Skillings-Donat, 216 P.3d 534, 540 (Alaska 2009) (affirming that joint legal custody was
inappropriate because both parents were "arrogant," "selfish," and could not
communicate with each other); Littleton v. Banks , 192 P.3d 154, 161(Alaska 2008)
(upholding award of sole legal custody because communication was poor).
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award. To that end, the "court must make explicit findings as to the parties' relative
25
financial resources and whether the parties acted in good faith." Gary argues the
superior court erred because it denied his motion for attorney's fees without providing
any explanation.
Our case law has thus far required explicit findings when making an award
26
But we have not previously required the superior
of attorney's fees under this statute.
court to make similar findings when it denies such a motion. We now conclude these
findings are ordinarily necessary when the superior court denies a motion for attorney's
27
fees, so that we may properly review the court's decision.
In his motion, Gary argued Meredith had much greater financial resources.
He also argued Meredith threatened to ruin him financially, and he submitted evidence
at the modification hearing that supported this claim. Gary also noted the court found
Meredith manipulated the process to restrict his visitation. He argues this finding is
equivalent to a conclusion that Meredith engaged in bad faith behavior, which would
support an award of attorney's fees in his favor.
From this record, we cannot determine whether the superior court actually
considered the issues Gary now raises on appeal. We remand this matter to the superior
court for findings regarding Gary's attorney's fees request.
25 Collier v. Harris, 261 P.3d 397, 410 (Alaska 2011) (quoting S.L. v. J.H.,
883 P.2d 984, 985 (Alaska 1994)) (internal quotation marks omitted).
26 See, e.g., id.; Smith v. Groleske, 196 P.3d 1102, 1108 (Alaska 2008); S.L.,
883 P.2d at 985-86.
27 We have come to the same conclusion in cases involving the denial of
attorney's fees under Alaska Civil Rule 82 and Alaska Appellate Rule 508. See Conway,
Inc. v. Ross , 627 P.2d 1029, 1032 (Alaska 1981); Curran v. Haistreiter, 579 P.2d 524,
530-31 (Alaska 1978).
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V. CONCLUSION
We REMAND this matter to the superior court for further proceedings on
Gary's request for attorney's fees and costs. We AFFIRM on all remaining issues.
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