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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Snider v. Snider (9/25/2015) sp-7055

Snider v. Snider (9/25/2015) sp-7055

         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  


THAD SNIDER,                                          )  

                                                      )        Supreme Court No. S-15613  

                           Appellant,                 )  

                                                      )        Superior Court No.  3AN-13-07848 CI  

                  v.                                  )  

                                                      )        O P I N I O N  

MICHELE SNIDER,                                       )  

                                                      )        No. 7055 - September 25, 2015  

                           Appellee.                  )  


                  Appeal from the Superior Court of the State of Alaska, Third  


                  Judicial District, Anchorage, Paul E. Olson, Judge.  

                  Appearances: Terry C. Aglietti, Aglietti, Offret & Woofter,  

                  Anchorage, for Appellant.  Ian Wheeles, Law Office of Ian  

                  Wheeles, Anchorage, for Appellee.   

                  Before:  Fabe, Chief Justice, Winfree, Stowers, Maassen, and  


                  Bolger, Justices.   

                  MAASSEN, Justice.  


                  A father filed for divorce and sought sole physical custody of the couple's  


only child.  Shortly before trial the father moved for a continuance.  The court vacated  

the  first  scheduled  trial  day,  used  the  second  to  take  testimony  from  out-of-state  


witnesses, then continued taking evidence a few days later.  Partway through that day's  


proceedings  the  court  informed  the  parties  it  was  their  last  opportunity  to  present  

----------------------- Page 2-----------------------


evidence.  The father  objected, and in post-trial pleadings he presented the affidavit  


testimony of two other witnesses he had intended to call.  The superior court denied his  

requests to present additional evidence.   

                   Because the lack of clarity in the proceedings led the father to reasonably  


believe he would have another opportunity to call witnesses, we hold that the superior  


court abused its discretion when it failed to give him that opportunity.  We remand the  


case to the superior court for a limited presentation of additional testimony.  We reject  


the father's arguments that the superior court erred by denying a motion for recusal and  


in its weighing of the best interest factors relevant to the award of physical custody.  


Finally, we outline the legal principles relevant to the treatment of one property issue on  



                    Thad and Michele Snider were married in 2008 and had a son in 2009.  In  

2013 Michele took the child with her to visit her family in Washington.  Deciding she  

did not want to return to Alaska or her marriage, she informed Thad by telephone that  

she wanted a divorce.  Nonetheless, she invited Thad to their son's upcoming birthday  

party in Washington and bought him a round-trip plane ticket for the occasion.   


                   By agreement, Thad had a few days alone with their son after he arrived in  

Washington.  But before the birthday party he took the child back to Alaska without  


Michele's knowledge or consent.  He filed for divorce the next day.  His attorney later  


contacted Michele, who at the time was unrepresented, and the couple signed an interim  


agreement that granted primary physical custody to Thad  and  gave Michele limited  


                                                             -2-                                                       7055

----------------------- Page 3-----------------------

                     The court held a pretrial conference in October 2013, and, although Thad's          

counsel mentioned a few scheduling and health-related issues, the court set a two-day   


divorce and custody trial for December 18 and 19 without objection.    

                     In mid-December, however, Thad moved for a continuance.  His counsel  


claimed to be "absolutely underprepared" for trial because he had only recently received  


Michele's discovery; he was still affected by an injury to his leg; he had just finished a  


criminal trial; and - based in part on his interactions with Michele's counsel - he  


thought "it was kind of presumed that we were going to [be] continuing this matter."  He  

had not yet written a trial brief or filed a witness list.  

                     Michele's counsel agreed that the two lawyers had discussed a continuance.  

He  explained,  however,  that  before  he  could  consult  with  Michele  about  it  she  had  


purchased airline tickets for herself and her mother to attend the December trial.  He  


suggested that they use part of the two days set aside for trial to "at least tak[e] their  


testimony while they're in town."  The court agreed:  it vacated the first day of trial and  


set aside two hours on the second day, December 19, to hear the testimony of Michele  

"and grandma, if she's a witness . . . , and preserve the testimony."  The court noted,  

"They're up here.  That's the only way I'll be able to judge their credibility."  The court  


also stated, twice, that the parties would "hold off on the property division" if that was  

"a real issue."  

                     The proceedings on December 19 accordingly consisted of the testimony  

of  Michele  and  her  mother  and  focused  largely  on  custody.    Although  Michele's  


testimony addressed a few property issues, the court reminded the parties that their time  


was limited and they could deal with property "at a different time," with the witnesses  


on the phone if necessary.  But at the end of the day the court informed the parties there  


was time available on December 24 if they wanted to continue putting on evidence while  

           1         Thad had different counsel in the trial court than he has on appeal.  

                                                                 -3-                                                               7055  

----------------------- Page 4-----------------------

the out-of-state witnesses were present.  Although Thad's counsel had planned to close  

his office on Christmas Eve and spend the holiday at a lodge in the Bush, the parties   

agreed to continue with the testimony on the 24th.  


                    On December 24 Michele testified primarily about the couple's property.  


She identified as marital property a cabin that had been deeded to her and Thad by his  

father Robert.  During cross-examination, the court asked Thad's counsel whether he was  


going to call Robert as a witness; Thad's counsel replied, "Not today.  We will.  I suspect  


we're not getting it finished today."  The court then stated, "I plan on finishing today."  


A few minutes later the court reiterated that they were in their last day of trial:  "We're  


going to finish today.  This is the only other trial day you have. . . .  And this is not going  


to turn into a three-day trial."  The court explained that the parties had originally been  

offered two afternoons to try the case, that it had afforded them that much time, and that  


it had no more trial days available until June.  Thad's lawyer objected that "that's going  

to be unfair to Mr. Snider," but the parties nonetheless continued with their presentation  


of evidence (including, in addition to the testimony of Michele, testimony from Thad and  

from Michele's sister) and closing arguments.  

                    Just before the court recessed, Thad's counsel asked that the judge recuse  


himself.  The attorney offered nothing but his opinion as a basis for the motion, stating  


that "I do not believe you can be unbiased or objective."  The court denied the motion,  


and Thad's counsel responded, "Okay.  I'll put that motion in writing."  Thad did not  

follow up with any written recusal motion.   


                    In January 2014 Thad filed an affidavit from his father Robert, attesting that  

the deed to the cabin discussed at trial was actually a security agreement and that Robert  

had never intended title to pass to Thad and Michele. Michele objected, and Thad filed  


a response describing his perspective on the proceedings and why he was surprised that  


December 24 was the last trial day.  According to Thad, if he had known it was his last  

                                                               -4-                                                         7055

----------------------- Page 5-----------------------

opportunity to put on evidence, he would have had Robert available to testify about the  

cabin, and he would have had his brother, Jeremiah deSilva, available to testify that  


Michele's mother had once contacted him for the illicit purchase or sale of prescription  


                 Thad attached deSilva's affidavit outlining this testimony.  He asked that the  


court "schedule additional time so that a more complete and adequate picture of this case  


may be presented before this court issues [its] final decision."  

                   Michele moved to strike the affidavits, and Thad filed a response which  

again  explained  why  he  thought  he  had  been  unfairly  surprised  by  the  course  of  

proceedings.  The superior court granted Michele's motion to strike, also stating that  


while Thad had not filed a formal motion for more trial time, his "constructive request  


for additional time is denied."   

                   The  superior  court  put  an  oral  decision  on  the  record  in  May  2014,  

awarding the parties joint legal custody of their son.  For physical custody, the court  

evaluated the child's best interests in light of the relevant statutory factors4 and found  

them all equal between the parties except "the willingness and ability of each parent to  


facilitate and encourage a close and continuing relationship between the other parent and  



the child."   The court found this factor to favor Michele, and it therefore awarded her  

primary physical custody.  In its division of property, the court found the cabin to be  

          2        Michele had testified   that she and the child would live at her mother's  

house in Washington.    

          3        Though not by separate motion, Thad did explicitly ask for more trial time  


in  both  his  response  to  Michele's  objection  to  the  Robert  Snider  affidavit  and  his  

response to Michele's motion to strike the two affidavits.  

          4        See AS 25.24.150(c).  

          5        AS 25.24.150(c)(6).  

                                                            -5-                                                      7055

----------------------- Page 6-----------------------


marital because it was titled in the parties' names and because "Mr. Snider failed to meet  

his burden to show that it was something else."  

                   Thad moved for reconsideration.  He argued once more that the superior  

court had led him to believe he would have the opportunity to present more evidence  


after December 24.  The superior court denied the motion and entered written findings  

of fact and conclusions of law reflecting its oral decision.  

                   Thad appeals.  



                   We review a superior court's ruling on a party's request to reopen evidence  


for  abuse  of  discretion.     Also,  "[a]  judge's  decision  that  he  is  actually  capable  of  

conducting a fair trial is reviewed for abuse of discretion.  The separate question whether  


a judge's participation in a case would lead reasonable people to question his ability to  

be fair is a question of law reviewed de novo."7  

                   "Trial  courts  have  broad  discretion  in  determining  child  custody,"  and  

"[w]e will set aside the superior court's custody determination only if the court abused  

its discretion or if its findings of fact are clearly erroneous."8  

         6         Sanguinetti v. Sanguinetti, 628 P.2d 913, 916 n.3 (Alaska 1981) ("[R]ulings  

of the trial court on . . . re-opening of a case will be disturbed on appeal only where there  


has  been  an  abuse  of  discretion.");  Yang  v.  Yoo,  812  P.2d  210,  217  (Alaska  1991)  

(stating  that  "[t]he  standard  of  review  of  the  trial  court's  admission  or  exclusion  of  

evidence is abuse of discretion" while analyzing request to admit affidavit after close of  

evidence); see also Miller v. State, 462 P.2d 421, 428 (Alaska 1969) ("The trial court has  


a large discretion with respect to order of proof in permitting a party to reopen after it has  


rested." (quoting Massey v. United States , 358 F.2d 782, 786 (10th Cir. 1966))).  

         7         Heber v. Heber , 330 P.3d 926, 934 (Alaska 2014) (footnote omitted).  

         8         Ebertz v. Ebertz , 113 P.3d 643, 646 (Alaska 2005).  

                                                           -6-                                                    7055

----------------------- Page 7-----------------------



          A.	       It Was An Abuse Of Discretion To Refuse Thad's Request To Reopen  

                    The Evidence.  


                    Thad argues that the superior court led him to believe he would be allowed  


to present additional evidence after December 24 and that it should have scheduled time  

for the testimony of his father and brother.  We agree and hold that it was an abuse of  

discretion to refuse to reopen the evidence on Thad's request.  


                    At the outset we emphasize that if the superior court had simply denied  


Thad's motion for a continuance outright at the December 16 hearing, it is very unlikely  



we would have found an abuse of discretion.                          "A party who seeks to continue a case set  

for trial must show that he acted with due diligence upon the grounds for which the  

continuance is sought,"10 and the record in this case reveals no such showing.11  


                    But the court did not deny the motion to continue trial; instead it scheduled  

one  day  of  proceedings  to  take  the  testimony  of  the  two  out-of-state  witnesses,  

          9         As with a request to reopen evidence, "we review for abuse of discretion  

a refusal to grant a continuance."  Shooshanian v. Dire, 237 P.3d 618, 622 (Alaska  


          10        Sparks v. Gustafson           , 750 P.2d 338, 341 (Alaska 1988); see also  Ben M. v.  

State, Dep't of Health & Soc. Servs., Office of Children's Servs., 204 P.3d 1013, 1019  

(Alaska 2009) (finding no abuse of discretion in denial of continuance when party made  


"no claim that representation was inadequate or ineffective, instead arguing only that he  


feels that his attorney possibly could have been better prepared"); Mack v. Mack , 816  


P.2d  197,  198  (Alaska  1991)  ("[W]e  believe  that  the  trial  court  here  had  reason  to  


discount the hardship that [the wife] might suffer if denied a second continuance, because  


her, or her original attorney's, lack of due diligence actually caused that hardship."  



                    Thad's argument for a continuance was based  largely  on  his  counsel's  


health  issue  and  trial  schedule,  both  of  which  he  had  noted  when  he  agreed  to  the  


December  18-19  trial.    And  although  the  parties  agreed  that  there  had  been  some  


miscommunication about whether to continue trial, the superior court correctly observed  

that - two days before trial - there was no agreement to continue.  

                                                               -7-	                                                        7055

----------------------- Page 8-----------------------


explaining, "I'm going to allow [Michele's counsel] to put on his testimony, for his client  


and [whatever other] witness that he has up here.  They're up here.  That's the only way  


I'll be able to judge their credibility.   We'll hold off on the property, if that's a real  


issue."  Michele's counsel confirmed that the proceeding would be for "just my two  


witnesses"  and offered to schedule it for the later of the two available days, December  

19, to give Thad's counsel more time to prepare.  


                       On December 19, as contemplated, Michele and her mother testified largely  


about custody.  When questioning by Thad's counsel strayed into property issues,  the  

superior court noted that "these are some items we can deal with at a different time";  the  


court  repeated  that  "the  purpose  of  this"  was  that  "[w]e  have  these  witnesses  up  in  


person," and "I'd like to see them today. . . .  I'd like to wrap it up pretty quick and get  

to redirect.  And get the grandmother in here to testify, so I can judge her credibility."  


And when Michele completed her testimony, the court advised her, "We'll hear from you  

again, when you're on the phone sometime, on the other issues."  


                       It was at the end of the day that the superior court suggested taking more  


evidence on December 24.  Again, the court was focused on the availability of the out-of- 


state witnesses:  "[I]f you wish to have a hearing[] while your client is here . . . I can do  


it the afternoon on the 24th. . . .  It's Christmas Eve, but if you want to have your clients  


here and the parties are available, we'll take Christmas Eve afternoon to accommodate  


the out-of-state witnesses."                       Although Thad's counsel was taken by surprise by the  

court's suggestion - he explained he had planned to release his staff on Christmas Eve,  

           12          The  superior  court  referred   to  the  out-of-state  witnesses  repeatedly  in  

explaining why it hoped to continue taking evidence on December 24:  "[Starting early       

in the afternoon will] give you as much time as possible, while the parties are here from  

out-of-state to take testimony and put whatever evidence you wanted on. . . .  It's helpful  


to the court because . . . it's significant to have the parties present to testify if at all  


possible.  And they're here and they only are here for such a short period of time."  

                                                                       -8-                                                               7055

----------------------- Page 9-----------------------

close his office, and spend the holidays at a lodge - he did consent to it, and the court  


thanked him "for [his] accommodation while they're here."  It could be inferred from bits  

of  conversation  that  the  participants  had  different  views  of  what  was  planned  for  


December  24.               But  the  superior  court  did  not  say  that  it  would  be  Thad's  last  


opportunity to present evidence.  In light of the narrow focus of the proceedings on the  


19th, and the lack of clarity as to the court's intentions for the 24th, we cannot say it was  


unreasonable for Thad's counsel to assume that the general plan was unchanged:  that  


is,  the  parties  would  take  as  much  testimony  as  they  could  while  the  out-of-state  

witnesses were in town but would have time for other witnesses later.  


                    It was only partway into Michele's testimony on December 24 that the  


superior court clarified it was the last day of trial.  Thad's lawyer said he had expected  


to call other witnesses later, and he protested that closing the evidence would be unfair  

to his client.  He laid out his objection with more detail in three post-trial memoranda:  


his response to Michele's objections to the post-trial filing of Robert Snider's affidavit  

(in which he asked for more trial time), his response to Michele's motion to strike the  


deSilva affidavit (again asking for more trial time), and his motion for reconsideration  


of the court's oral decision (in which he asserted that the proceedings had denied him  

due process).  He outlined the procedural basis for his belief that December 24 was not  


going to be his last opportunity to present evidence, and he described the testimony from  

Robert Snider and Jeremiah deSilva that he had been prevented from introducing.  

          13        At one point Thad's counsel remarked that "we can try and get some more  

of something on anyway"; the court responded that "[i]f you move quickly through the  


essential things, you may be able to take the whole process in the morning and then  

you're good to go the rest of your day"; and Michele's counsel said, "I don't have any  

reason to think we couldn't finish."  But it is not clear whether by "the whole process"  


the court meant the entire case, the custody issue, or the testimony of the out-of-state  


witnesses;  and  it  is  not  clear  what  Michele's  counsel  was  suggesting  could  be  

"finish[ed]" that day.  

                                                              -9-                                                        7055

----------------------- Page 10-----------------------


                    In deciding whether to hold the record open for additional evidence, a court  


should consider the importance of the evidence, the diligence of the proponent of the  


                                                                                       The additional evidence that  

evidence, and the possible prejudice to the other party. 


Thad offered could make a difference to the superior court's decision.  Thad explained  


in his post-trial filings that Robert Snider - grantor of the deed to the disputed cabin -  


would testify that the deed reflected a security interest rather than a transfer of title to the  


marital estate; this was an issue to which the parties devoted significant trial time but  

which was decided against Thad specifically because he failed to produce sufficient  


evidence of the parties' intent.  DeSilva was to testify about alleged substance abuse by  


a member of Michele's household who would have some responsibility for the child's  

care.  The superior court found the relevant best interests factor15 equal between the  


parties, finding no "evidence of substance abuse [that would] . . . affect the emotional,  


physical well[-]being of the child.  So this is neutral."  Because all factors but one were  

          14        See  Aransas  Project  v.  Shaw,   775  F.3d   641,   655  (5th  Cir.  2014)  ("In  

deciding  whether  to  reopen  evidence,  a  court  should  weigh  'the  importance  and  

probative value of the evidence, the reason for the moving party's failure to introduce  

the evidence earlier, and the possibility of prejudice to the non-moving party.' " (quoting  


Chieftain  Int'l  (U.S.),  Inc.  v.  Southeast  Offshore,  Inc., 553  F.3d  817, 820  (5th  Cir.  


2008)));  S.E.C. v. Rogers, 790 F.2d 1450, 1460 (9th Cir. 1986) ("A district court should  

take into account, in considering a motion to hold open the trial record, the character of  

the additional testimony and the effect of granting the motion.  The court should also  


consider  the  diligence  of  the  moving  party,  and  any  possible  prejudice  to  the  other  

party." (citing 6A J. Moore, M 


                                              OORE 'S FEDERAL PRACTICE ,   59.04 [13] at 59-31 to 32  


(2d ed. 1985) and Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 331-32  


          15        See AS 25.24.150(c)(8) ("In determining the best interests of the child the  


court shall consider . . . evidence that substance abuse by either parent or other members  

of the household directly affects the emotional or physical well-being of the child.").  

                                                              -10-                                                         7055

----------------------- Page 11-----------------------


equal in the superior court's analysis, according different weight to any one of them may  

have affected the court's decision to grant primary physical custody to Michele.16  


                     Furthermore, our review of the hearing transcripts convinces us that Thad's  


belief that he would have more time to present evidence was reasonable.  The superior  

court's  instructions  to  the  parties  were  unclear  as  to  the  purpose  and  scope  of  the  


proceedings, and the court did not clarify that the evidence was to close on December 24  

until that day's proceedings were already underway.  And we can perceive no unfair  


prejudice to the opposing party if Thad were allowed to present the testimony of these  

two witnesses, subject to cross-examination.  

                    Under  these  circumstances,  once  Thad  had  submitted  the  post-trial  


affidavits of the witnesses he would have presented given the chance, it was an abuse of  


                                                                                      Given the potential importance  

discretion to deny his request to reopen the evidence. 


of the evidence we cannot say that the error was harmless.                                      We therefore vacate the  


superior court's decisions on child custody and marital property and remand for further  

          16        See Barton v. N. Slope   Borough Sch. Dist., 268 P.3d 346, 353 (Alaska  

2012) ("The test for determining whether an error [in excluding evidence] was harmless            

is whether on the whole record the error would have had a substantial influence on the       

verdict . . . .     Some factors relevant to this inquiry are the relative amount of time at trial  

devoted  to  the  evidence  and  whether  the  .  .  .  evidence  was  cumulative  and  largely  

replicated other . . . evidence."  (quoting Noffke v. Perez , 178 P.3d 1141, 1147 (Alaska  


2008))  (second  and  third  alterations  in  original)  (internal  quotation  marks  omitted)  


(footnote omitted)).  



                     Thad also argues that the superior court's refusal to allow him to present  

additional  testimony  deprived  him  of  due  process.    Because  we  conclude  that  the  

superior court abused its discretion, we need not reach the constitutional issue.  



                     Cf. Noffke, 178 P.3d at 1147 ("Even though it was error to exclude the  


exhibits,  [the  party  alleging  error]  must  still  show  that  the  error  was  harmful  or  


                                                               -11-                                                          7055

----------------------- Page 12-----------------------


proceedings, limited to the testimony of Robert Snider and deSilva and any necessary  


rebuttal.  Such proceedings shall be completed within 90 days of the date of this opinion.  

          B.        The Denial Of Thad's Motion For Recusal Was Not Error.  


                    Thad also argues that the superior court erred when it denied his motion for  


recusal for bias.  "To prove a claim of judicial bias, the claimant must show that the  


judge formed an opinion of [him] from extrajudicial sources, resulting in an opinion  


other than on the merits."                 And although a judge must "consider the appearance of  

partiality in addition to actual bias, we have also explained that when a party seeks a  


judge's  recusal  solely  due  to  the  appearance  of  partiality,  'a  greater  showing  is  


required.' "         Thad fails to make that showing here.  

                    Thad first finds bias in the judge's failure to provide the additional time  

Thad expected for the presentation of evidence.  But while we agree that this was an  


abuse of discretion, "a ruling against a party, even an incorrect ruling, is not evidence of  

judicial bias." 21  

                    Thad also finds bias in certain of the court's factual findings, largely about  

custody, which he contends were unsupported by the record.  While one of the superior  


court's findings - that Thad "worked long hours, oftentimes seven days a week" -  

          19        Ronny M. v. Nanette H.             , 303 P.3d 392, 409 (Alaska 2013) (alteration in  

original) (quoting  Williams v. Williams, 252 P.3d 998, 1010 (Alaska 2011)); see also  

AS 22.20.020(a) (describing matters in which a "judicial officer may not act"); Alaska  


Code  of  Jud.  Conduct,  Canon  3  ("[A]  judge  shall  disqualify  himself  or  herself  in  a  

proceeding in which the judge's impartiality might reasonably be questioned.").  

          20        Peterson  v.  Swarthout ,  214  P.3d  332,  339  (Alaska  2009)  (quoting  

 Wasserman v. Bartholomew, 38 P.3d 1162, 1170 (Alaska 2002)).  



                    Id. ; see also Wasserman , 38 P.3d at 1171 ("Although we twice reversed the  

trial court for excluding the testimony of three witnesses, we affirmed the trial court's  

rulings  on  all  other  appealed  issues.  .  .  .  We  hold  that  denying  the  motion  for  

disqualification was not an abuse of the trial court's discretion.").  

                                                            -12-                                                       7055

----------------------- Page 13-----------------------

                                             22	                                                                            23 


appears to be erroneous,                         the "controlling findings of fact" are not.                                     As a whole, "[t]he  



factual findings therefore do not reflect an abuse of discretion, much less any bias." 

Because the record does not support a contention that the trial judge could not be fair,   

we hold that he did not abuse his discretion when denying Thad's motion for recusal.                                                                            25  

             C.	         Although The Superior Court Must Reconsider Its Custody Decision  


                         On Remand, There Was No Abuse Of Discretion In Its Weighing Of  


                         The Best Interest Factors Thad Addresses On Appeal.  

                         Thad also argues that the superior court erred in awarding primary physical  


custody  to  Michele.    Although  we  are  vacating  the  custody  decision  for  further  

consideration  in  light  of  the  additional  evidence  to  be  heard  on  remand,  Thad's  

arguments are independent of the reasons for remand, and we address them so that he  



need not raise them again.                           We find no error in the superior court's weighing of the best  

interest factors that Thad addresses in his appeal.   

             22          Thad testified, apparently without contradiction, that his work schedule was  

four 10-hour days a week.  

             23          See  Red  Elk  v.  McBride,   344   P.3d   818,   822   (Alaska  2015)  ("We  will  

overturn the superior court's conclusion on a custody issue 'only if the entire record                                                    

demonstrates that the controlling findings of fact are clearly erroneous or that the trial  

court abused its discretion.' " (quoting Chesser-Witmer v. Chesser, 117 P.3d 711, 715  

(Alaska 2005))).  

             24	         Barlow v. Thompson , 221 P.3d 998, 1005 (Alaska 2009).  

             25          Thad makes no argument on appeal that the superior court erred by failing  

to refer the recusal order to the presiding judge for further review.  See AS 22.20.020(c).  




                         See Robinson v. Robinson, 961 P.2d 1000, 1003 (Alaska 1998) (remanding  

for further findings on a motion to modify custody but "briefly address[ing] the merits  

of  [the  mother's]  arguments  opposing  the  modification  motion  in  order  to  provide  

guidance to the superior court").  

                                                                             -13-	                                                                       7055

----------------------- Page 14-----------------------

                   In a divorce proceeding, the superior court "shall determine custody in  


accordance with the best interests of the child."27   "We will set aside the superior court's  



custody determination only if the court abused its discretion or if its findings of fact are  


clearly erroneous."28  "The superior court abuses its discretion if it 'consider[s] improper  

factors  in  making  its  custody  determination,  fails  to  consider  statutorily  mandated  

factors,  or  assign[s]  disproportionate  weight  to  particular  factors  while  ignoring  


others.' "29  

                   Thad first argues that the superior court erred by finding "the love and  


affection existing between the child and each parent"                         to favor Michele.  Thad's premise  

is simply mistaken; the superior court found this factor equal between the parties.  

                   Second, Thad challenges the superior court's finding that "the length of  

time  the  child  has  lived  in  a  stable,  satisfactory  environment  and  the  desirability  of  


maintaining continuity"               was equal between the parties.  Thad  argues that because the  

child had not lived with Michele in Washington for more than a few days, "the judge  

assumed, without evidence, that the [child's] life would have been stable had he remained  


there  because  Thad  submitted  no  evidence  to  the  contrary."    But  the  superior  court  


considered two components of the stability factor, "maintaining geographic continuity  


and maximizing relational stability," and applied the principle that "courts may properly  

award  primary  custody  to  the  relocating  parent  when  that  parent  offers  superior  

          27       See AS 25.24.150(c).  

          28       Ebertz v. Ebertz , 113 P.3d 643, 646 (Alaska 2005).  

          29       Id.  (alterations in original)   (quoting Barrett v. Alguire , 35 P.3d 1, 5 n.5  

(Alaska 2001)).  

          30       AS 25.24.150(c)(4).  

          31       AS 25.24.150(c)(5).  

                                                            -14-                                                      7055

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emotional stability."              The superior court explicitly noted that "[s]tability, oftentimes,  

is not a particular location and instead . . . can be based upon the relationship with the  


parties." And the superior court's conclusion regarding Michele's emotional connection  


to the child is supported by its factual findings, which in turn are supported by the  


                    Furthermore, since the parties had signed an interim custody agreement  


granting Thad physical custody - at Thad's insistence and before Michele had retained  


counsel - Michele could not make the kind of showing of long-term stability that Thad  


argues was required. Thad's argument amounts to a "continuity test centered entirely on  


                                                                                                                   And to the  

the child's geographical stability," which we have specifically disclaimed. 


extent Thad implicitly argues that Michele bore a burden to introduce evidence on this  


point, he is mistaken.  There is no presumption against custody in this case, and neither  


parent has a greater burden than the other.                         

          32        Meier v. Cloud , 34 P.3d 1274, 1279 (Alaska 2001)  (quoting Blanton v.  

Yourkowski, 180 P.3d 948, 953-54 (Alaska 2008)).  

          33        Id. at 954 ("A continuity test centered entirely on the child's geographical   

stability would always favor placing the child with the non-moving parent.  Yet our  

decisions recognize that courts may properly award primary custody to the relocating  


parent when that parent offers superior emotional stability."  (quoting Meier , 34 P.3d at  





                    See Johnson v. Johnson, 564 P.2d 71, 75 (Alaska 1977) (stating that neither  

parent  has  "a  greater  burden  than  the  other  in  attempting  to  obtain  custody  in  a  

dissolution proceeding"); 1 J 

                                           EFF ATKINSON , MODERN CHILD CUSTODY PRACTICE   4-2  

(2d ed. 2014) ("In the majority of states that by appellate court decision or statute do not  

give  preference  to  mothers,  the  burden  of  proof  is  placed  equally  on  both  parents.  


Whichever parent can show by a preponderance of the evidence that it would be in the  


child's best interest to be in his or her custody will obtain custody, even if the difference  

in proof is very slight.") (footnote omitted); see also Harris v. Harris , 240 S.E.2d 30, 31  


(Ga. 1977) ("The ordinary burden of proof of the plaintiff in a legal action does not apply  



                                                              -15-                                                         7055

----------------------- Page 16-----------------------


                    Thad also argues that the superior court abused its discretion by failing to  

provide "symmetric consideration" of the effects on the child of separation from Thad  

and  separation  from  Michele  as  required  by  Moeller-Prokosch  v.  Prokosch .35                                      The  


mother  in  that  custody  case  was  considering  a  move  to  Florida,  and,  after  several  


                                       the superior court awarded her primary physical custody only  

remands from this court, 



if she remained in Alaska.                 The superior court based its decision in part on its finding  



that the child "would be devastated if he had to move to Florida away from his father." 

                    At  trial,  however,  it  had  been  "undisputed  that  [the  child]  would  be  

devastated by either custody choice:  living in Alaska without his mother or living in  

Florida without his father," and we concluded that the superior court had improperly  


to  the  plaintiff  in  a  divorce  action  seeking  the  custody  of  a  minor  child.  The  true  


objective is the best interest of the child. . . .  Where the trial judge exercises a sound  

legal discretion looking to the best interests of the child, this court will not interfere with  


his judgment unless it is shown that his discretion was abused.").  

          35        99 P.3d 531 (Alaska 2004).  



                    See Moeller-Prokosch v. Prokosch , 27 P.3d 314, 316-17 (Alaska 2001);  

Moeller-Prokosch v. Prokosch , 53 P.3d 152, 155-57 (Alaska 2002).  

                    We have previously held that, in making a custody determination when a  


parent chooses to relocate outside of Alaska, "a court must consider the best interests of  


the children by applying the criteria in AS 25.24.150(c), and in doing so should consider  

whether  there  is  a  legitimate  reason  for  the  move,"  and  that  "[a]  proposed  move  is  


legitimate if it 'was not primarily motivated by a desire to make visitation . . . more  


difficult.' "   Ronny M. v. Nanette H., 303 P.3d 392, 402-03 (Alaska 2013) (quoting  


 Vachon v. Pugliese, 931 P.2d 371, 379 (Alaska 1996) and Moeller-Prokosch , 27 P.3d  

at 316 (alterations in original)).  Thad has not alleged - either at trial or on appeal -  


that Michele's move was not for a legitimate reason.  

          37        Moeller-Prokosch , 99 P.3d at 533.  

          38        Id.  

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----------------------- Page 17-----------------------

failed to address the impact on the child if he stayed in Alaska without his mother.39  We  



held that "[p]erforming the best interests analysis based on [a parent's] assumed move  


requires symmetric consideration of the consequences to [the child] both if she leaves  


with him and if she leaves without him"; we therefore reversed the superior court's  


                    In this case, although the superior court acknowledged the child's "stable  


environment" in Alaska where he had been living with Thad since shortly after  the  


separation, it is true that the court discussed more specifically the child's close emotional  


ties to his mother and his maternal grandmother in Washington.  But the court ultimately  


concluded that the stability factor favored neither parent.  Again, the court's findings are  


well  supported  by  the  record.    And  unlike  Moeller-Prokosch ,  we  can  see  from  the  


superior  court's  discussion  of  the  stability  factor  that  it  did  consider  both  parents'  


situations individually; there was therefore no abuse of discretion.                                    

                    Finally,  Thad  argues  that  the  superior  court  erred  in  finding  that  "the  

willingness and ability of each parent to facilitate and encourage a close and continuing  


relationship between the other parent and the child"42  - the determinative factor -  

favored  Michele,  because  its  factual  findings  are  not  supported  by  the  record.    We  


disagree.  Michelle testified about Thad's efforts to restrict or condition her visitation,  


and  Thad  himself  testified  about  his  many  reservations  regarding  Michele's  living  

situation  and  general  stability,  concerns  the  superior  court  could  reasonably  have  

          39        Id. at 535.  

          40        Id. at 535-36.  

          41        See  Silvan  v.  Alcina,  105   P.3d    117,  121-22  (Alaska  2005)  ("Unlike  

Moeller-Prokosch . . . there is no evidence to indicate that the superior court did not  

individually address and consider both parents' situations.").  

          42        AS 25.24.150(c)(6).  

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----------------------- Page 18-----------------------


concluded  were  overstated.    Furthermore,  the  superior  court  was  clear  that  its  

conclusions on this factor especially were based on credibility, and "[w]e 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."43  


                     Without considering the additional evidence that on remand may affect the  


superior court's award of custody, we see no abuse of discretion in the superior court's  

weighing of the best interest factors that Thad addresses on appeal.  

          D.	        Whether  The  Cabin  Is  Marital  Property  Must  Be  Determined  By  

                     Reference To Circumstances Relevant To The Parties' Intent.  


                     Finally, because the character of the cabin formerly titled in the name of  


Thad's father will be a focus of the proceedings on remand, we take this opportunity to  

describe the parameters of that decision.  The evidence already adduced shows that  


Robert signed a quitclaim deed to the property in the names of Thad and Michele.  Thad  


testified that he and Michele helped Robert pay his past-due taxes, and to secure Robert's  


repayment  of  this  debt  (at  Michele's  insistence)  Robert  put  the  cabin  in  Thad  and  

Michele's names.  Thad testified that Robert still considered the cabin his residence.   


                     As the superior court recognized in its decision,"[d]eeds absolute on their  

face can be reformed into security agreements based on clear and convincing evidence  



that a security was intended."                    Here, however, the superior court found that Thad had  


failed to carry his burden to prove the existence of a security agreement, and the cabin  

was marital property.  

          43         Nancy M. v. John M.            , 308 P.3d 1130, 1133 (Alaska 2013) (quoting                           Misyura  

v. Misyura , 242 P.3d 1037, 1039 (Alaska 2010));                             see also  James R. v. Kylie R. , 320 P.3d  

273, 281-82 (Alaska 2014).  



                     Griffin v. Weber, 299 P.3d 701, 704 (Alaska 2013) (citing Rizo v. MacBeth ,  

398 P.2d 209, 211 (Alaska 1965)).  

                                                                 -18-	                                                          7055

----------------------- Page 19-----------------------

                     In deciding whether a security interest was intended, Alaska courts "look     

to the intention of the parties at the time of execution," and "[i]n the absence of any  


writing the intention is to be determined from all of the facts and circumstances of the  


transaction in which the deed was executed, in connection with the conduct of the parties  


after its execution."              In making that determination,  


                     [s]ome of the various circumstances that may be considered  

                     are:    The  adequacy  or  inadequacy  of  consideration  as  

                     compared to the value of the property, which is often stated  

                     to   be   the   single   most   important   factor.      Retention   or  


                     nonretention of possession.  The conduct of the parties before  


                     and  after  the  execution  of  the  instrument.    The  financial  

                     condition   of   grantor   at   the   time   of   execution   of   the  

                     instrument.    The  overall  relationship  of  the  parties  -  

                     financial, business, debtor-creditor, etc. Whether the grantor  


                     or grantee paid the taxes.  The construction of improvements  


                     after  the  execution  of  the  deed.                  Whether  or  not  revenue  



                     stamps were affixed to the instrument.  


And "[t]here are others.  Generally it can be said that no one of the circumstances is  

necessarily controlling, but that all present are to be considered."47  

                     On remand, and with the addition of Robert's testimony, the superior court  


will  need  to  consider  the  cabin's  status  as  marital  property  in  light  of  all  relevant  

evidence of the parties' intent.  

           45        Rizo , 398 P.2d at 211-12.  

          46         Id. at 212 (footnotes omitted); see also Griffin , 299 P.3d at 704 n.4.  

          47         Rizo , 398 P.2d at 212 (footnotes omitted).  

                                                                 -19-                                                           7055

----------------------- Page 20-----------------------


                  We  VACATE  the  superior  court's  decisions  on  child  custody  and  the  


division of marital property and REMAND for further proceedings consistent with this  


opinion, to be completed within 90 days.  We retain jurisdiction.                         

         48       Alaska Rules of Appellate Procedure 507(b) and 512(a) aside, this decision   

takes effect immediately and the clerk of the appellate courts shall return the record to  

the superior court without waiting for expiration of the time for filing a petition for  


                                                      -20-                                                  7055

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