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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Susan M. v. Paul H. (12/11/2015) sp-7069

Susan M. v. Paul H. (12/11/2015) sp-7069

            Notice:   This opinion is subject to correction before publication in the P                               ACIFIC  REPORTER.  

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                         THE SUPREME COURT OF THE STATE OF ALASKA                                                

SUSAN  M.,                                                              )  

                                                                        )           Supreme  Court  No.  S-15602  

                        Appellant,                                      )  


                                                                        )           Superior Court No. 3AN-09-11090 CI  

            v.                                                          )  


                                                                        )           O P I N I O N  


PAUL H.,                                                                )  


                                                                        )           No. 7069 - December 11, 2015  

                        Appellee.                                       )  


_______________________________ )  


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


                        Judicial District, Anchorage, Frank A. Pfiffner, Judge.  


                        Appearances:  Timothy R. Watts, Anchorage, for Appellant.  


                        Notice  of nonparticipation  filed by  Wayne Anthony Ross,  


                        Ross & Miner, P.C., Anchorage, for Appellee.  


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


                        Bolger, Justices.  


                        STOWERS, Justice.  

I.          INTRODUCTION  



                        This appeal arises out of a custody dispute between Susan M. and Paul H.   

It involves (1) Susan's motion to sanction Paul for wrongfully denying her visitation and  


(2) her motion to enjoin Paul from relocating to California with the children after the  


2013-14 school year, a move the superior court previously approved.  


            1           We use initials and pseudonyms to protect the privacy of the parties.                                          

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

                                           The superior court denied both motions, and Susan appeals. We affirm but                                                                                                                                                           

strongly caution that a parent's unilateral suspension of the other parent's visitation                                                                                                                                                                  

based on perceived violations of a custody agreement is improper in all but exceptional                                                                                                                                                            

circumstances.     Even where such circumstances exist, the concerned                                                                                                                                                                      parent should   

immediately inform the court of the problem.                                                                          

II.                   FACTS AND PROCEEDINGS                           

                                            Susan M. and Paul H. are the divorced parents of James (born June 2003),                                                                                                                                               

Preston (born December 2004), and Jennifer and Jacquelyn (twins born March 2007).                                                                                                                                                                                                     2  


In 2012 Paul discovered that Susan had surreptitiously left Alaska with the children.  


 Susan had primary physical and sole legal custody of the children at that time. Paul was  


working  on  the  North  Slope  on  a  three-week  rotating  schedule,  and  he  exercised  


unsupervised visitation with overnights when he was not working.   After Susan left  


Alaska, Susan and the children lived in several states, and Susan later claimed that she  


left Alaska to protect the children from Paul, who she alleged was a sexual predator.  


                                           Finding that Susan was "a bad parent" and had "taken it upon herself to  


repeatedly flout the [court's] orders" by denying Paul's visitation and running from state  


to state with the children, Superior Court Judge Frank A. Pfiffner subsequently modified  


custody to give Paul sole legal and physical custody, with Susan receiving very limited  


supervised visitation.  The children were located in Colorado and sent back to Paul in  


Alaska;  Susan  was  arrested  and  later  pleaded  guilty  to  misdemeanor  custodial  

                      2                    Paul's stepdaughter, Sylvia, also lived with Paul and Susan during the                                                                                                                                                            

marriage.     Susan  came   to   believe   that   Paul   was   abusing   Sylvia,   and   a   custody  

investigator later noted that Susan's "belief that Paul is a sex offender has been at the                                                                                                                                                                                     

core of her litigation." The Office of Children's Services (OCS) has never substantiated                                                                                                                                                      

a child abuse complaint against Paul.                                                                   

                                                                                                                                        -2-                                                                                                                             7069

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


interference.   Even after her guilty plea, Susan still indicated that she did not believe she                                                                                                                                                                                                                                                                                                                                                                                        

had done anything wrong and that she would act on her own again if she felt it was                                                                                                                                                                                                                                                                                                                                                                                               


                                                                            In May 2013 Paul requested permission to relocate with the children to                                                                                                                                                                                                                                                                                                                                          

 California where he had greater family support.                                                                                                                                                                                                                                       Susan opposed the motion, and the                                                                                                                                                             

 superior court ordered a custody investigation.                                                                                                                                                                                                                       The custody investigator recommended                                                                                                             

that, so long as OCS did not substantiate any of Susan's abuse allegations against Paul,                                                                                                                                                                                                                                                                                                                                                                                   

he should retain sole legal and physical custody and be permitted to move to California,                                                                                                                                                                                                                                                                                                                                                   

with   Susan   still   having   only   supervised  visitation.     The   custody   investigator   also  

recommended that OCS file a child-in-need-of-aid petition for the children if it did                                                                                                                                                                                                                                                                                                                                                                                   

 substantiate any of the abuse allegations against Paul.                                                                                                                                                                                                                          

                                                                            Susan and Paul reached a 26-page settlement agreement shortly after the                                                                                                                                                                                                                                                                                                                                   

 custody investigator issued her report. Under the agreement Paul retained sole legal and                                                                                                                                                                                                                                                                                                                                                                                           

physical   custody   with   Susan   having   supervised   visitation   only.     Susan's   visitation  

 supervisor was supposed to be within sight and sound of Susan and the children "as                                                                                                                                                                                                                                                                                                                                                                                                 

much as possible, recognizing that some activities may allow for the supervisor to                                                                                                                                                                                                                                                                                                                                                                                                        

maintain Susan and the children [within] sight or sound, but not both, for periods of                                                                                                                                                                                                                                                                                                                                                                                                      


                                                                            The agreement also allowed Paul to relocate to California with the children                                                                                                                                                                                                                                                                                                   

 after they completed the 2013-14 school year, and it contained terms governing the                                                                                                                                                                                                                                                                                                                                                                                                  

                                      3                                     AS11.41.330 (a)(1) ("Aperson commitsthecrimeofcustodial interference                                                                                                                                                                                                                                                                                      

in the second degree if (1) being a relative of a child under 18 years of age . . . and                                                                                                                                                                                                                                                                                                                                                                         

knowing that the person has no legal right to do so, the person takes, entices, or keeps                                                                                                                                                                                                                                                                                                                                                                

that child . . . from a lawful custodian with intent to hold the child . . . for a protracted                                                                                                                                                                                                                                                                                                           


                                                                                                                                                                                                                                             -3-                                                                                                                                                                                                                              7069

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

events after the relocation to California. The agreement seemed to assume that both Paul                                                                                                                                                                                   

and Susan would relocate.                                 

                                           Paul and Susan subsequently testified that they believed the agreement was                                                                                                                                                        

in the children's best interests. The superior court concurred and adopted the settlement                                                                                                                                                               

agreement as its custody order.                                                   

                                           Approximately   two   months later                                                                              - and                      shortly   before the end                                                      of the   

2013-14 school year - Susan filed a motion seeking sanctions against Paul under                                                                                                                                                                                      

                                                4   alleging that Paul had willfully and  without just excuse denied her  

AS 25.20.140,                                                                                                                                                                                                                                                                

visitation.  Susan also requested make-up visitation.  Paul opposed, and the superior  


court scheduled a hearing for May 2014.  


                                           Three days before the hearing, Susan filed her reply and a notice that she  


intended to ask the court to modify the custody order to prevent Paul from moving to  


California.   She also raised new domestic violence allegations against Paul.   At the  


hearing, Susan made an oral motion for an injunction and to further modify the custody  


order after Paul's counsel noted that Paul intended to leave for California that evening,  


after the hearing.  


                                           While the superior court was skeptical that Susan could prove a substantial  


change in circumstances, it allowed her to provide evidence to support her motion.  


Susan and two of her visitation supervisors testified regarding Paul's behavior and their  


observations  of  the  children.                                                                            Among  other  things,  they  alleged  that  Paul  acted  


suspiciously by waiting outside the North Star Animal Hospital during one of Susan's  


                      4                    AS 25.20.140 provides a non-custodial parent with a cause of action for                                                                                                                                                             

failure to permit visitation when the custodial parent "willfully and without just excuse"                                                                                                                                                                      

denies the non-custodial parent visitation. Susan's brief also cites to AS 25.24.140 when                                                                                                                                                                               

quoting language from AS 25.20.140.                                                                                          We address only AS 25.20.140, as the reference                                                                                

to AS 25.24.140 is seemingly in error.                                                                     

                                                                                                                                        -4-                                                                                                                              7069

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


visits; Paul yelled at Susan and a supervisor in front of the children after Susan took  


Jacquelyn and Jennifer to OCS; Paul abused Jennifer; and Paul gave Jacquelyn a black  



                    Paul also testified, primarily rebutting the allegations made against him.  


Paul explained that he waited outside the North Star Animal Hospital for about an hour  


and a half because he had witnessed Susan and the children leave the building without  


the supervisor, and he had wanted to make sure Susan was not trying to run away again.  


Paul specifically denied acting in a threatening manner towards Susan and the supervisor  


after the OCS visit. Paul also denied abusing Jennifer, and he explained that Jacquelyn's  


black eye was an accident.  


                    Paul confirmed that he had denied Susan visitation, but he claimed that he  


had done so because she had repeatedly violated the supervised visits requirement and  


he believed she would continue to do so.  He claimed he was concerned that, without  


supervision, Susan would try to manipulate the children.  And he stated in his affidavit,  


filed prior to the hearing and incorporated into his testimony, "Every time I drop the  


children off I wonder if I will see them again."  


                    The superior court denied Susan's motions.   On Susan's motion for an  


injunction, the court found it unlikely that Susan could prevail on the merits by showing  


a substantial change in circumstances because (1) Paul's move to California was fully  


anticipated in the settlement agreement, which Paul and Susan agreed was fair and in the  


children's best interests, and (2) Susan had failed to show she was likely to succeed in  


demonstrating that Paul had committed domestic violence.  The court generally found  


that Paul was more credible on the domestic violence allegations, that Paul's alleged  


actions did not rise to the level of domestic violence, and that it appeared Susan was  


suffering from "buyer's remorse" with respect to the settlement agreement.  


                    The superior court also refused to sanction Paul under AS 25.20.140.  The  

                                                               -5-                                                         7069

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

court found Paul was not liable under AS 25.20.140, concluding that Paul had not acted                                                                  

without just excuse because the                                 visitations   had   restarted and                       Susan had             repeatedly  

violated the supervision requirement of her visitation with the children. Susan appeals.                                                                        5  





                         The interpretation of a statute is a question of law that we review de novo, 


"adopt[ing] the rule of law that is most persuasive in light of precedent, reason, and  



                         "We review the best interests determination supporting a visitation award  


to determine whether 'the superior court has abused its discretion or if its controlling  



findings of fact are clearly erroneous.' "                                    "A decision constitutes abuse of discretion if  


it is 'arbitrary, capricious, manifestly unreasonable, or . . . stems from an improper  

                   9   And findings of fact are clearly erroneous when we are left with a "definite  



motive.' " 

and firm conviction . . . that a mistake has been made."10  


             5           Paul filed anoticeofnon-appearanceandhasnotparticipated                                                         inthis     appeal.  



                         Jimerson v. Tetlin Native Corp., 144 P.3d 470, 472 (Alaska 2006) (citing  


Kodiak Island Borough v. Roe, 63 P.3d 1009, 1012 n.6 (Alaska 2003)).  

             7           Rockstad v. Erikson, 113 P.3d 1215, 1219 (Alaska 2005) (citing Rausch v.  


Devine, 80 P.3d 733, 737 (Alaska 2003)).  


             8           Hawkins  v.  Williams,  314  P.3d  1202,  1204  (Alaska  2013)  (quoting  


Osterkamp v. Stiles, 235 P.3d 178, 183 (Alaska 2010)).  


             9           Roderer v. Dash, 233 P.3d 1101, 1106 (Alaska 2010) (quoting Shea v.  


State, 204 P.3d 1023, 1026 (Alaska 2009)).  


             10           Dunn v. Dunn, 952 P.2d 268, 270 (Alaska 1998) (quoting R.F. v. S.S., 928  


P.2d 1194, 1196 n.2 (Alaska 1996)) (internal quotation marks omitted).  


                                                                              -6-                                                                       7069

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

                              We review both the denial of a preliminary injunction and the imposition                                                                      


of sanctions under AS 25.20.140 for abuse of discretion.                                                                                                           

                                                                                                                                     But the legal determinations  



underlying the superior court's denial of an injunction are reviewed de novo. 

IV.	           DISCUSSION  


               A.	            The Superior Court Did Not Err When It Denied Susan's Motion For  


                              Sanctions And Make-Up Visitation.  


                               Susan's challenge to the superior court's denial of her motion for sanctions  


and make-up visitation under AS 25.20.140 requires us to consider several issues. First,  


we must conduct a factual review to determine whether the superior court clearly erred  


in finding that Paul denied Susan visitation because of Susan's past violations of the  


custody order. Next, we consider whether, based on those facts, the superior court erred  


in concluding that Paul had just excuse for denying Susan visitation.   This analysis  


requires us to determine the meaning of "without just excuse" in AS 25.20.140 and then  



decide how the standard applies in this case. 

               11             Haggblom v. City of Dillingham                                           , 191 P.3d 991, 995 (Alaska 2008) (citing                                      

Smallwood v. Cent. Peninsula Gen. Hosp.                                                      , 151 P.3d 319, 322 (Alaska 2006)) (regarding                                   

the standard of review for denial of a preliminary injunction);                                                                                Lestenkof v. Lestenkof                             ,   

No. S-14081, 2012 WL 2053689, at *2 (Alaska June 6, 2012) (regarding AS 25.20.140).                                                                                        

               12             See City of Kenai v. Friends of Recreation Ctr., Inc., 129 P.3d 452, 455  


(Alaska 2006).  


               13              Susan  also  argues  that  the  superior  court  erred  when  it  held  that  


AS 25.20.140 only allowed it to grant her $200 for each missed visitation instead of  


granting make-up visits or other equitable relief as she requested.  We do not reach this  


issue because we affirm the court's decision that Paul did not violate AS 25.20.140.  


                                                                                               -7-	                                                                                      7069

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

                                             1.	                    The superior court did not clearly err when it found that Paul   

                                                                    denied Susan visitation because of Susan's past violations of the                                                                                                                                                    

                                                                    custody order.   

                                             Susan argues that Paul denied her visitation to retaliate against her for                                                                                                                                                                   

reporting that he may have abused Jennifer, pointing to "[t]he temporal proximity of the                                                                                                                                                                                                  

OCS report and the termination of the visits" for support. Paul responded in the superior                                                                                                                                                                               

court that he denied Susan's visitation because he was fearful she would abscond with                                                                                                                                                                                                

the children                               again.     The superior                                                    court was thus required to                                                                       make factual findings                           

regarding Paul's motivation and both parties' credibility.                                                                                                  

                                             The superior court found that there were sight and sound violations during                                                                                                                                                       


Susan's supervised visitation                                                                                                                                                                                                                                                          

                                                                                                             and that Paul had not acted "completely without just  


cause" because of these supervision violations.  We understand the court's statements  


as implicitly finding that Susan's violations of the supervised visitation requirement  


motivated Paul to deny her future visitation.  


                                             Thecourt'sfindings regarding Paul'smotivationsareprimarilyacredibility  


determination.  Paul testified that he denied Susan visitation because of the supervision  


violations  and  because  he  "just  couldn't  take  it  anymore."                                                                                                                                                     He  expressed  specific  


concerns  that  Susan  might  try  to  manipulate  the  children.                                                                                                                                                          And  in  the  affidavit  


incorporated into his oral testimony, he stated, "[E]very time I drop the children off I  


wonder if I will see them again." His affidavit also correctly noted that even the custody  


investigator "was not confident that [Susan] would not disappear with the children  

                       14                    As noted                          above,   the superior                                                 court's visitation                                            order   required   Susan's  

visitation supervisor to remain within sight and sound of Susan and the children "as                                                                                                                                                                                                    

much as possible, recognizing that some activities may allow for the supervisor to                                                                                                                                                                                                          

maintain Susan and the children [within] sight or sound, but not both, for periods of                                                                                                                                                                                                       

time."    Paul alleged, and the superior court found, that Susan violated this term by                                                                                                                                                                                                    

removing the children from the supervisor's sight and sound.                                                                                                                            

                                                                                                                                             -8-	                                                                                                                                  7069

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

again."   In the face of this record, Susan argues that "[t]he temporal proximity of the                                                                                                                                                                   

OCS   report   and   the   termination   of   the   visits"   demonstrates   that   Paul   was   actually  

retaliating against Susan for reporting possible abuse to OCS.                                                                                                            

                                         Susan's argument that Paul denied her visitation to retaliate against her is                                                                                                                                          

unpersuasive in light of the evidence presented and the superior court's essential role in                                                                                                                                                                     

                                                                                                                                   15       The court did not commit clear error in  

viewing witnesses and weighing evidence.                                                                                                                                                                                                                      

finding that Paul denied Susan visitation because she had violated the requirement that  


her visitation be supervised.  


                                        2.	                  The superior court did not err when it concluded that Paul had  


                                                             a just excuse for withholding the children.  


                                         Susan contends  that the superior court erred when it ruled that Paul's  


reasons for withholding the children gave him a just excuse to do so.  She argues that  


"[n]either  the  type  of  activities  the  children  participate  in  while  visiting[16]  


                                                                                                                                                                                                                                              nor  the  


conduct of the supervisor for supervised visits is . . . a just excuse."  

                     15                  "Thesuperior court's factualfindings enjoy particular deferencewhen 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."                                                                                                                                                                         In  

re Adoption of S.F.                                       , 340 P.3d 1045, 1047 (Alaska 2014) (quoting                                                                                               William P. v. Taunya                     

P., 258 P.3d 812, 814 (Alaska 2011)) (internal quotation marks omitted).                                                                                                                                                       

                     16                 We note that the superior court's ruling does not appear grounded in the  


types of activities the children participated in during their visits with Susan, and we  


therefore do not address this contention in any detail.  


                                                                                                                              -9-	                                                                                                                    7069

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

                                                           a.	                A custodial parent denies visitation "without just excuse"                                                                                             

                                                                              when he denies visitation for any reason other                                                                                                          than a   

                                                                              good faith and reasonable belief that not permitting the                                                                                                            

                                                                              visitation is in the child's best interests.                                                 

                                       Alaska   Statute   25.20.140(a)   provides   for   sanctions   against   a   child's  

custodian   when   the custodian                                                            "willfully   and   without just excuse" prevents another                                                                                

person from exercising court-ordered visitation with the child.                                                                                                                       But the statute provides                     

only broad guidance regarding the meaning of "just excuse," stating:                                                                                                                

                                       "[J]ust excuse" includes illness of the child which makes it                                                                                                              

                                       dangerous to the health of the child for visitation to take place                                                                                              

                                       in conformance with the court order; "just excuse" does not                                                                                                          

                                       include the wish of the child not to have visitation with the                                                                                                        

                                       person entitled to it.                                    [17]  

We  have  rarely  been  called  upon  to  discuss  AS  25.20.140  or  its  criminal  analog,  


AS  But we did discuss the meaning of "without just excuse" in L.L.M. v.  


P.M., a case concerning attorney's fees awards on custody-related motions.19  In L.L.M.,  


                    17	                AS 25.20.140(c)(3).   



                                       See ch.126,  2-3, SLA 1977.  AS 25.20.140, the current version of the  


 statute, was previously codified as AS 09.55.238 and AS 25.24.300.  There has been no  


change  to  the  language  during  these  renumberings.                                                                                                           AS  11.51.125  was  previously  


codified as AS 11.36.010.  

                    19                 754 P.2d 262, 265 (Alaska 1988).  The holding in L.L.M. regarding the  


appropriate standard applicable to awards of attorney's fees and costs related to a motion  


to  modify,  vacate,  or  enforce a custody  order  has  since  been  abrogated in  part by  


AS 25.20.115.  This  change in the law does not impact our analysis in this appeal.  


                                                                                                                        -10-	                                                                                                                7069

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


we quoted AS 25.20.140                       and emphasized the "willfully and without just excuse"                          


language,          holding,  


                     The statutory standard of "willfully and without just excuse"  


                     appears appropriate in determining the question of attorney's  


                     fees  after  a  motion  to  amend  or  enforce  a  custody  or  


                     visitation order is adjudicated.  In that way the unsuccessful  


                     party who reasonably, and in good faith, believes that his or  


                     her action was justified by the best interests of the children  


                     will not be deterred from action by the possibility of an award  



                     of fees and costs. 

Thus, we interpreted acting "without just excuse" as when a parent acts other than  


"reasonably, and in good faith, believ[ing] that his . . . action was justified by the best  


interests of the children."23  



                     We applied this standard in Lestenkof v. Lestenkof,  

                                                                                                      when a father allowed  


his teenage daughter to skip her mother's visitation because the daughter refused to go.25  


Despite AS 25.20.140's statement that a child's wish not to have visitation with a parent  


is not a "just excuse," we held the superior court's decision not to sanction the father was  


           20        The   court   in  L.L.M.   quoted   AS   25.24.300.    This   statute   has   since  been  

renumbered,  with  no  changes  to  its  wording,  as  AS  25.20.140.  

           21        Id.  at  264-65.  

           22        Id.  at  265  (emphasis  added).  

           23        Id.  

           24        No.  S-14081,  2012  WL  2053689  (Alaska  June  6,  2012);  see  also  Kessler  

v.  Kessler,  827  P.2d  1119,  1120  (Alaska  1992)  (per  curiam)  (reiterating  and  applying  the  

standard  in  L.L.M.).  

           25        Lestenkof, 2012 WL 2053689, at *1.  


                                                                 -11-                                                            7069

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

not erroneous given the facts of that case, stating, "we do not believe the legislature                                          

intended to force visitation when it is not in the best interests of the child."                                               26  

                       Although the "without just excuse" standard was not the primary issue in  


L.L.M., we believe L.L.M. provides the appropriate interpretation of that standard.  The  


legislative history regarding AS 25.20.140 and AS 11.51.125 does not shed any light on  


what the legislature meant when it used the phrase "without just excuse."   But the  


standard from L.L.M.  is consistent with the general statutory scheme regarding child  


custody and reflects good public policy.  


                       The   overarching   principle   when   discussing   child   custody   is   the  


best-interests-of-the-child standard in AS 25.20.110 and AS   The standard  


in L.L.M. reflects and reinforces the importance of the best interests of the child.  We do  


not believe the legislature intended that custodial parents who deny visitation when they  


have a reasonable and good faith belief that permitting visitation is not in a child's best  


interests should be punished.  Otherwise, the legislature would not have provided that  


a "just excuse" for preventing visitation will not lead to sanctions.  


                       Therefore, we reaffirm that a parent will be found to have denied visitation  


without just excuse when  that parent denies  visitation  on  any  ground other  than  a  


reasonable and good faith belief that denying the visitation is in the child's best interests.  


                                  b.	        The superior court did not err when it held that Paul had  


                                             not denied Susan visitation without just excuse.  


                       We now turn to the heart of Susan's argument:  whether the superior court  


improperly found that Paul had not acted willfully and without just cause. Although the  


superior court did not use the precise language we used in L.L.M., we conclude that the  


           26	         Id.  at *2.   

           27          AS 25.24.150(c).  


                                                                      -12-                                                                     7069  

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


superior court's reasons for not sanctioning Paul are sufficient to find that he acted  


reasonably and in good faith to protect the children's best interests.  


                    Paul's concern appears to have been Susan's repeated violation of the  


condition that her visitation be supervised, that she would continue to do so, and that the  


violations could  worsen.                 The superior  court credited Paul's professed motives for  


denying the visitation.  The court also noted that it had previously found - and both  


parents had agreed - that the earlier settlement agreement was in the children's best  


interests.   That agreement specifically provided that Susan's visits with the children  


would be supervised.  


                    The supervision requirement appears grounded in two concerns:  (1) that  


Susan might again flee with the children and (2) that Susan would "grill[] the children  


about their veracity." Indeed, Susan's ability to transition to unsupervised visitation was  


predicated on her obtaining an expert assessment concluding that there was a "minimal"  


risk of her fleeing with the children, that she had "stopped grilling the children about  


their veracity[,] and that her conversations with the children [were] not damaging in any  


other way."  


                     Susan'spastconductand continuing concerns that shemight again fleewith  


the children led to the need for sight and sound supervision.  The trial court found that  


Susan prevented Paul from seeing the children by taking the children and moving them  


through several states until she was eventually arrested for custodial interference.  Even  


after  her  return  to  Alaska  and  her  guilty  plea  of  custodial  interference,  Susan  still  


indicated that she did not believe she had done anything wrong and that she would act  


on her own again if she felt it was necessary. The trial court noted that she also persisted  


in claiming that Paul was a sex offender, despite numerous investigations finding no  


evidence to support her claim.  

                                                               -13-                                                         7069

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

                    The second major concern was that Susan "grill[ed] thechildren about their  


veracity."  The custody investigator noted that "[b]y doing so, she implies to them that  


she thinks they may be lying, and this may well be damaging her relationship with  


them."   And we specifically note that the custody investigator apparently had such  


significant concerns regarding Susan that she recommended that if any abuse allegations  


against Paul were substantiated, OCS should file a child-in-need-of-aid petition and take  


custody of the children instead of recommending that the children be placed with Susan.  


                    Considering all of the underlying facts together, we find no error in the  


superior court's conclusion that Paul did not act unreasonably and in bad faith to protect  


the children's best interests when he denied Susan's visitation.  It is only because the  


superior court determined that Paul's resort to self-help -refusing visitation to Susan -  


was supported by a just excuse that protected the children's best interests that we affirm  


the superior court's decision that Paul was not liable for sanctions under AS 25.20.140.  


But we emphasize that as a general matter we strongly disapprove of parents engaging  


in self-help without first seeking the court's intervention.  Only in exceptional cases  


should the superior court condone a parent's resort to self-help.  


          B.	       The Superior Court Did Not Refuse To Consider Susan's Oral Motion  


                    To Modify Custody.  


                    Susan argues that the superior court abused its discretion when it refused  


to consider her motion to modify custody because the motion was not made in writing.  


But our review of the record indicates that while the superior court may have expressed  


skepticism regarding Susan's chances of prevailing, the court allowed her to present  


significant evidence in support of her motion. The court's oral ruling addressed Susan's  


motion to modify, describing the "big issue" as whether the court "should grant some  


kind of an injunction or recognize this oral motion to modify pursuant to AS 25.20.110."  


The court made specific findings regarding Susan's allegations based on the testimony  


                                                              -14-	                                                        7069

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it heard and denied the motion.                                       Thus, the court allowed Susan to present evidence and                                                           

argue regarding her motion to modify and ruled on the motion on its merits.                                                                                             The court   

did not refuse to consider the motion; Susan's argument to the contrary is unpersuasive.                                                                        

               C.	           The Superior Court Was Not Required To Conduct A Best-Interests                                       



                             Deciding a motion to modify custody or visitation is a two-step process.                                                                                           


The  superior  court  must  first  find  that  there  has  been  a  substantial  change  in  



circumstances that justifies revisiting the custody or visitation situation.                                                                                         If there has  



not been a substantial change in circumstances, the analysis ends.                                                                                    If there has been a  


substantial changein circumstances, thesuperior court must analyzethethen-current best  


interests  of  the  children  using  the  factors  in  AS  25.20.110.                                                                        After  considering  the  


then-best interests of the children, the superior court may leave the existing custody and  



visitation framework in place, modify it in part, or modify it in whole. 


                              Susan  argues  that  "[b]ecause  an  oral  motion  to  modify  was  filed,  the  


standard to be applied to Susan's request to enjoin removal of the children from the state  


should have been the best interest standard." She contends that Paul's impending move  


out  of  Alaska  met  the  predicate  requirement  that  there  be  a  substantial  change  in  


circumstances.  Susan criticizes the superior court for failing "to determine if [Paul's]  


move was for legitimate reasons."   She claims that she was denied "her right to an  


evidentiary hearing on the motion to modify," but we have held in the previous section  


                             Nelson v. Nelson                      , 263 P.3d 49, 52 (Alaska 2011) (citing AS 25.20.110).                                          



                             McLane v. Paul, 189 P.3d 1039, 1043 (Alaska 2008).  



                             See id.  



                             Nelson, 263 P.3d at 53.  

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that she was not so denied.  Alternatively, she argues that "the denial of visitation and   

the reasons for denial were sufficient to establish grounds for an evidentiary hearing."                                                                                                                                                                                   

                                               Susan's argument ignores two essential facts.  First, Susan had explicitly  

 agreed that Paul - who had sole legal and physical custody of the children - would                                                                                                                                                                                                    

 "remain in Alaska to allow the children to finish the current school year in Wasilla, [                                                                                                                                                                                                     and  

would]   then . . . be permitted to relocate to California if he so desires.                                                                                                                                                                                     " (Emphasis   

 added.) References to Paul and the children moving to California appear throughout the                                                                                                                                                                                                            

 settlement agreement.                                                           Second, Susan had previously testified that the terms of the                                                                                                                                                    

 settlement agreement were in the children's best interests.                                                                                                                                              The superior court similarly                                        

 found the terms of the agreement to be in the children's best interests when it made the                                                                                                                                                                                                         

 settlement agreement its order.                                                       

                                               While Susan is correct that we have held "the custodial parent's decision                                                                                                                                                        

to leave the state with the children constitutes a substantial change in circumstances,"                                                                                                                                                             

neither case that she cites for support involved a situation where the non-custodial parent                                                                                                                                                                                             


previously agreed that the custodial parent's move was in the children's best interests.                                                                                                                                                                                                                         

Indeed, if both parties specifically contemplate and plan for a move to a new state in their  


 custody agreement, it is difficult to see how that anticipated move could constitute a  


 substantial change in circumstances. The superior court correctly concluded that Paul's  


impending move to California did not constitute a substantial change in circumstances  


 on the facts of this case.  


                                               Susan's argument that Paul's denial ofher visitation andhis reasons for that  


 denial entitled her to an evidentiary hearing is similarly without merit.  As noted above,  


thesuperior courtfound that Paul had justifiablycancelled Susan'svisitationbecauseshe  




                                              Misyura v. Misyura, 244 P.3d 519, 520-21 (Alaska 2010); see Rego v.  


Rego, 259 P.3d 447, 449-52 (Alaska 2011).  

                                                                                                                                                -16-                                                                                                                                                       7069  

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

had violated the supervision requirement.                                                                                                                                                         It is difficult to see how Paul justifiably                                                                                                   

denying Susan visitation could represent a substantial change in circumstances that                                                                                                                                                                                                                                                                                         

would support restraining Paul's ability to move to California.                                                                                                                                                                     

                                                           Finding a substantial change in circumstances based on justifiably denied                                                                                                                                                                                                                             

visitation would unreasonably increase the uncertainty that the children at the center of                                                                                                                                                                                                                                                                                            

a custody dispute already face.  The children should not be forced to once more doubt   

the permanency of their home when the custodial parent reasonably and in good faith                                                                                                                                                                                                                                                                                       

acts to protect their best interests in a relatively minor way that negatively impacts the                                                                                                                                                                                                                                                                                       

non-custodial parent's rights.                                                                                                     And the requirement that there be a substantial change in                                                                                                                                                                                          

circumstances is motivated, in part, by a desire to protect children from exactly this type                                                                                                                                                                                                                                                                                 

of uncertainty.                                                  33  

                                                           Therefore, the superior court was not required to analyze the best interests  


of the children because Susan failed to demonstrate that there had been a substantial  


change in circumstances that would justify modifying the court's custody and visitation  



V.                            CONCLUSION  

                                                           For the reasons stated above, we AFFIRM the superior court's decision.  


                              33                           McLane,    189    P.3d    at    1043   ("We    require    [a    substantial    change    in  

circumstances] to maintain continuity of care and to avoid disturbing and upsetting the                                                                                                                                                                                                                                                                                          

child with repeated custody changes . . . .  '[C]hildren should not be shuttled back and                                                                                                                                                                                                                         

forth between divorced parents unless there are important circumstances justifying such                                                                                                                                                                                                                                                                                    

change.' " (quoting                                                                    Nichols v. Nichols                                                                  , 516 P.2d 732, 735 (Alaska 1973)).                                                                                          

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