| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
|
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
Notice: This opinion is subject to correction before publication in the P ACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.us.
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
1
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-----------------------
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
necessary.
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
time."
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
period.").
-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
eye.
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
III. STANDARD OF REVIEW
6
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
policy."7
"We review the best interests determination supporting a visitation award
to determine whether 'the superior court has abused its discretion or if its controlling
8
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.
6
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
11
of sanctions under AS 25.20.140 for abuse of discretion.
But the legal determinations
12
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
13
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
14
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 11.51.125.18 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).
18
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-----------------------
20
we quoted AS 25.20.140 and emphasized the "willfully and without just excuse"
21
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
[22]
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
24
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 25.24.150.27 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
----------------------- Page 15-----------------------
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
Analysis.
28
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
29
circumstances that justifies revisiting the custody or visitation situation. If there has
30
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
31
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
28
Nelson v. Nelson , 263 P.3d 49, 52 (Alaska 2011) (citing AS 25.20.110).
29
McLane v. Paul, 189 P.3d 1039, 1043 (Alaska 2008).
30
See id.
31
Nelson, 263 P.3d at 53.
-15- 7069
----------------------- Page 16-----------------------
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
32
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
32
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
order.
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)).
-17- 7069
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
