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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Sweeney v. Organ (4/15/2016) sp-7097

Sweeney v. Organ (4/15/2016) sp-7097

           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                                       

JANELLE  L.  SWEENEY,                                            )  

                                                                 )          Supreme  Court  No.  S-15746  

                      Appellant,                                 )  


                                                                 )          Superior Court No. 4FA-04-00025 CI  

           v.                                                    )  


                                                                 )          O P I N I O N  


ROBERT J. ORGAN,                                                 )  


                                                                 )          No. 7097 - April  15, 2016  

                      Appellee.                                  )  


_______________________________ )  


                      Appeal  from  the  Superior  Court  of  the  State  of  Alaska,  


                      Fourth Judicial District, Fairbanks, Michael A. MacDonald,  




                      Appearances:  Mila A. Neubert, Neubert Law Office, LLC,  


                      Fairbanks, for Appellant.  Gary L. Stapp, The Law Office of  


                      Gary L. Stapp, Inc., Fairbanks, for Appellee.  


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


                      Bolger, Justices.  


                      STOWERS, Chief Justice.  



                      A  couple had  one  child  during their  marriage.   After  their divorce  the  


parents shared physical and legal custody of the child. In 2013 the mother filed a motion  


to modify custody requesting primary physical  custody to move with the child from  


Fairbanks to Anchorage, and the superior court granted her primary physical custody for  


as long as the parties resided in different communities.  The court also made findings  

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regarding the father's abusive communication style.                                                                                                                                                   The father moved to Anchorage                                                     

 soon after the mother, and the parties began sharing physical custody again.                                                                                                                                                                                                                   After an   

incident where the father brought the police to the mother's residence because she had                                                                                                                                                                                                                               

declined to give him visitation time outside the custody order, the mother again moved                                                                                                                                                                                                                   

to modify custody.                                                         Following a three-day hearing, the court found that there was a                                                                                                                                                                                    

change in circumstances and modified legal custody by giving the mother the right to                                                                                                                                                                                                                                       

make all major parenting decisions.                                                                                                  But it declined to give the mother primary physical                                                                                                           

custody because it found that doing so would be devastating to the child and would                                                                                                                                                                                                                        

increase the friction between the parents.                                                                                 

                                                  The mother appeals; her sole argument on appeal is that the superior court                                                                                                                                                                                   

misapplied the best interest factors.                                                                                                She argues that the court should have awarded her                                                                                                                                 

primary physical custody because it found that the father's abusive communication style                                                                                                                                                                                                                          

had not changed.                                                  And she argues that the court essentially rewarded the father's bad                                                                                                                                                                                

behavior by finding that friction between the parents would increase if they did not share                                                                                                                                                                                                                     

physical custody equally.                                                                        We affirm the superior court's order.                                                                                 

II.                      FACTS AND PROCEEDINGS                                  

                                                  Janelle   Sweeney   and   Robert   Organ   married   in   November   1997  in  

                                                                                                                                                             1  who was born in 2000.  Elizabeth was born  

Fairbanks.   They had one child, Elizabeth,                                                                                                                                                                                                                                                                      

with  Dandy  Walker  Syndrome,  a congenital brain malformation  that  causes her  to  


function below her chronological age. The parties divorced in February 2005 and agreed  


to joint legal and shared physical custody:  the physical custody arrangement provided  


for a 4/3-3/4 alternating week schedule with each parent having Elizabeth for 50% of the  


time  annually.                                                     That  arrangement  changed  to  a  week-on/week-off  schedule  in  


March 2014.  Janelle subsequently remarried and had a second child.  




                                                  We use a pseudonym for the daughter to protect her privacy.  

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                    In  2012  Janelle  filed  a  motion  seeking  primary  physical  custody  of  


Elizabeth so that she and Elizabeth could move to Anchorage.   The superior court  


granted Janelle primary physical custody of Elizabeth during the school year and Robert  


custody of Elizabeth during Elizabeth's summer vacation.  But the court ordered that  


custody  return  to  shared  physical  custody  if  the  parents  were  to  live  in  the  same  


community again.  


                    After that order, Robert decided to move to Anchorage to be able to have  


shared physical custody. It took Robert a few months to make the move, and during that  


time Janelle exercised primary physical custody of Elizabeth.  While Robert was in the  


process of moving he requested many weekends of visitation with Elizabeth that were  


outside the court's order.   On one occasion, after Janelle denied Robert's visitation  


request, he showed up at Janelle's sister's house (where the family was living) with two  


Anchorage police officers, explaining that he wanted to give Elizabeth a present. Janelle  


believed that this was intended to harass and embarrass her, and she felt "shocked,  


frightened, and unnerved to have police show up at the house."   She stated that the  


incident also greatly distressed Elizabeth.  


                    Janelle filed a motion to show cause in response to the police incident, and  


after a hearing the superior court found Robert's conduct to be "intentional and malicious  


and designed to be disruptive."  The court warned that continued disruptive conduct by  


Robert would constitute a change in circumstances that could justify modifying the  


custody order such that Janelle would have primary physical custody and Robert would  


have very restricted visitation.  


                    Based on the court's findings, Janelle filed a motion to modify custody  


requesting  primary  physical  and  sole  legal  custody.                              The  court  held  a  three-day  


evidentiary hearing in August and September 2014.   The court found that Robert's  


disrespectfuland power-orientedmannerofspeaking to Janellehadbecomeintentionally  

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disrespectful conduct that represented a change in circumstances. Specifically, the court                                                                                                                                                                                                                                                                                                                                 

concluded that the police incident was "intended to make a scene" and to "demonstrate                                                                                                                                                                                                                                                                                           

power over the mother, even at the cost of harm to Elizabeth."                                                                                                                                                                                                   

                                                                    In its order modifying custody the                                                                                                                                     court gave all decision-making authority                                                                                                                    

to Janelle involving Elizabeth's education and medical care, but it left the label of joint                                                                                                                                                                                                                                                                                                                                 

legal custody in place so that Robert could still "go directly to the medical providers and                                                                                                                                                                                                                                                                                                                                       

the schools and others for his information."                                                                                                                                                                                      However, the court decided to maintain                                                                                                                               

 shared physical custody between the parties, specifically finding that a change from a                                                                                                                                                                                                                                                                                                                                                      

week-on/week-off custody schedule would be "disastrous" to Elizabeth.                                                                                                                                                                                                                                                                                                     The court also                                        

 found that awarding Janelle primary physical custody would "require even more                                                                                                                                                                                                                                                                                                                              contact,  

more coordinations, there would be more requests for additional times; it would only                                                                                                                                                                                                                                                                                                                                        

make matters worse."                                                  

                                                                    In   support   of   maintaining   shared   physical   custody,   the   court    also  

determined that while Janelle was more capable of meeting Elizabeth's special needs,                                                                                                                                                                                                                                                                                                                               

Janelle was "not completely respecting of the relationship between the child and the                                                                                                                                                                                                                                                                                                                                               

 father, the child's social needs, and the child's need for continuity and stability," mainly                                                                                                                                                                                                                                                                                                                    

due to the chaos stemming from the move.                                                                                                                                                                                             And the court noted that changing the                                                                                                                                                        

custody schedule, "from [Elizabeth's] perspective, . . . would be disastrous.                                                                                                                                                                                                                                                                                                                That's not   

her life.  Her life is week-on/week-off."  The court ordered the parents to "get back to   

week-on/week-off and behave [themselves]."                                                                                                                 

                                                                    Janelle appeals.                                                                She agrees with the superior court's factual findings and                                                                                                                                                                                                                    

                                                                                                                 2 but she argues that the superior court abused its discretion when  

its legal custody order,                                                                                                                                                                                                                                                                                                                                                                                                 

it declined to award her primary physical custody.  


                                  2                                 The legal custody order is therefore not before us on this appeal.  


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                        "The trial court has broad discretion in child custody decisions."                                                            

                                                                                                                                              We will  


reverse the superior court's decision when "the record shows an abuse of discretion or  


                                                                                                       "A superior court abuses its                     

if controlling factual findings are clearly erroneous." 


discretion in the custody context when it 'fails to consider statutorily mandated factors,  



weighs factors improperly, or includes improper factors in its decision.' " 



            A.	 	       The Court Did Not Abuse Its Discretion When It Applied The Best  


                        Interest Factors.  


                        Alaska Statute 25.24.150(c) requires the superior court to base its custody  



rulings on the child's best interests.                            The statute lists " 'nine potentially relevant factors  



that the court must consider' when determining the best interests of the child": 


                         [1] the needs of the child; [2] each parent's ability and desire  


                        to meet those needs; [3] the child's preference, if he or she is  

            3            Veselsky v. Veselsky                , 113 P.3d 629, 632 (Alaska 2005) (citing                                    Jenkins v.   

Handel, 10 P.3d 586, 589 (Alaska 2000)).                        

            4           J.F.E. v. J.A.S., 930 P.2d 409, 411 (Alaska 1996) (citing Farrell v. Farrell,  


819 P.2d 896, 898 (Alaska 1991)); see also Hamilton v. Hamilton, 42 P.3d 1107, 1111  


(Alaska 2002).  


            5		          Williams v. Barbee, 243 P.3d 995, 1000 (Alaska 2010) (quoting Michele  


M. v. Richard R., 177 P.3d 830, 834 (Alaska 2008)); see also Ebertz v. Ebertz, 113 P.3d  


643, 646 (Alaska 2005); Siekawitch v. Siekawitch, 956 P.2d 447, 449 (Alaska 1998).  


            6           Moore v. Moore, 349 P.3d 1076, 1080 (Alaska 2015); Ronny M. v. Nanette  


H., 303 P.3d 392, 401 (Alaska 2013); Schmitz v. Schmitz, 88 P.3d 1116, 1122 (Alaska  


2004); West v. West, 21 P.3d 838, 841 (Alaska 2001);  Park v. Park, 986 P.2d 205, 206  


(Alaska 1999); Siekawich, 956 P.2d at 451.  


            7            Caroline  J.  v.  Theodore  J.,  354  P.3d  1085,  1091-92  (Alaska  2015)  


(emphasis in original) (quoting Park, 986 P.2d at 206).  


                                                                            -5-	                                                                   7097

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                                old enough to have one; [4] the love and affection between                                                                 

                                the child and each parent; [5] the stability and continuity of                                                                            

                                the child's environment; [6] the willingness of each parent to                                                                             

                                facilitate thechild's                          relationship withtheotherparent; [7] any                                                

                                domestic violence or child abuse; [8] any substance abuse                                                                        

                                that directly affects the child; and [9] other factors that the                                                                        

                                                                                     [  ]  

                                court deems pertinent.                                8 

The superior court need not mention each factor by name; it is sufficient if the findings  


provide  "a  clear  indication  of  the  factors  [that  the  court]  considered  important  in  


exercising its discretion or allow us to glean from the record what considerations were  



                                Wearesatisfied that thesuperior court considered the relevantfactorsunder  


AS 25.24.150(c).  Janelle concedes that the court considered the willingness of each  


parent  to  foster  a  relationship  between  the  child  and  the  other  parent.                                                                                                    The  court  


commented that by moving to Anchorage Janelle was not completely respectful of  


Elizabeth's relationship with her father and Elizabeth's social needs.   But the court  


appeared not to weigh this factor very heavily, and it found that Janelle made the move  


in good faith.10  


                8               Id .;  see also              AS 25.24.150(c);                           Moore, 349 P.3d at 1080 & n.9;                                               Ronny M.                ,  

303 P.3d at 401 & n.26;                                   Park, 986 P.2d at 206-207.                   

                9               Rosenblum v. Perales, 303 P.3d 500, 504 (Alaska 2013) (alteration in  


original) (quoting Ebertz, 113 P.3d at 648); see also Ronny M., 303 P.3d at 401-402  


(quoting Chesser v. Chesser-Witmer, 178 P.3d 1154, 1158 (Alaska 2008)); Siekawitch,  


956 P.2d at 451; Borchgrevink v. Borchgrevink, 941 P.2d 132, 137 (Alaska 1997).  


                10              Had the court given dispositive weight to this factor - in effect punishing  


Janelle for having chosen to move to another community notwithstanding the court's  


finding that the move was made for legitimate reasons - it would have abused its  


discretion.  See Moeller-Prokosch v. Prokosch, 27 P.3d 314, 317 (Alaska 2001) ("The  


court is to assess the best interests in light of all of the relevant factors, including the  



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                                                                         The court                                           also consideredtheneeds of thechildand the parents'capabilities                                                                                                                                                                                                                               

in meeting those needs when it found that Janelle was better able to meet Elizabeth's                                                                                                                                                                                                                                                                                                                                    

needs. It then considered the love and affection between the child and each parent when                                                                                                                                                                                                                                                                                                                                                                    

it noted that "[Elizabeth] has to feel that she has a place that she can call home and that                                                                                                                                                                                                                                                                                                                                                                        

the important people in her life can come to [visit].                                                                                                                                                                                                                                      That's her father."                                                                                          And the court                                      

 emphasized the importance of the stability and continuity of the child's environment                                                                                                                                                                                                                                                                                                                            

when it concluded that a change from week-on/week-off custody "would be 'disastrous'                                                                                                                                                                                                                                                                                                                                    

to her because 'that's not her life.' "                                                                                                                                                       

                                                                         Janelle contends that the superior court abused its discretion because it                                                                                                                                                                                                                                                                                                                             

 should   have   modified   physical   custody   upon   finding   that   Robert's   behavior   had  

worsened.   She argues that "it is difficult to determine why the court decided that a                                                                                                                                                                                                                                                                                                                                                                                          

 change in physical custody would make things worse beyond the court's statement that                                                                                                                                                                                                                                                                                                                                                                              

it would."                                               According to Janelle the court noted the harm to Elizabeth but was "unable                                                                                                                                                                                                                                                                                                         

to fashion a remedy and so left shared physical custody in place."  And Janelle argues   

that, notwithstanding thesuperior court having found that Robert's behavior was bad and                                                                                                                                                                                                                                                                                                                                                                              

had gotten worse, the court failed to craft a remedy to protect Elizabeth from harm and                                                                                                                                                                                                                                                                                                                                                                            

Janelle from further conflict.                                                                                 

                                                                         The   superior  court   found   that   the   parents'   inability   to   communicate  

 effectively was harming Elizabeth.                                                                                                                                                                    It strongly admonished Robert for his negative                                                                                                                                                                                  

 communication style and disrespectful conduct, finding that Robert intentionally acted                                                                                                                                                                                                                                                                                                                                                                   

to intimidate, harass, and bully Janelle. The court also found that Robert was indifferent                                                                                                                                                                                                                                                                                                                                    

to the harm his conduct inflicted on Elizabeth:                                                                                                                                                                                                             it highlighted the incident where Robert                                                                                                                                              



impact of the move on the child.  No Alaska law allows a court to require a custodial  


parent to forego relocation if custody with that parent remains in the child's best interests  


 and the relocation is not for an illegitimate reason.").  

                                                                                                                                                                                                                                     -7-                                                                                                                                                                                                                      7097

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came to Janelle's house with the police to deliver a package to Elizabeth and Robert's                                                                                                                        

incessant requests for additional time with Elizabeth in the roughly three months that                                                                                                                                                 

Janelle had primary physical custody in early 2014.                                                                              

                                      We are puzzled that the court evidently did not consider other options it had                                                                                                                    

to craft a custody order that could have reduced the opportunities for contact and friction                                                                                                                                   

between Robert and Janelle.                                                      But we have noted in prior decisions that "[i]t is the well-                                                                                       

being of the child rather than the reward or punishment of a parent that ought to guide                                                                                                      

                                                                                                                  11 and we are reviewing the court's order under  

every aspect of a custody determination,"                                                                                                                                                                                         

a deferential abuse of discretion standard.  


                                      This is a very close case, but we are persuaded that the superior court's  


decision was focused primarily on Elizabeth's best interests:  the court considered the  


relevant  factors  and  found  that  a  change  from shared  physical  custody  "would  be  


disastrous" to this special needs child.  We have often stated that when a trial court's  


decision is based primarily on oral testimony, the court's findings are given particular  


                             12  Given the superior court's finding and strong reliance on the great harmthat  


Elizabeth would suffer if custody were changed, we cannot conclude that the court  


abused its discretion.  But we also caution that the court has many tools at its discretion  


to ensure that Robert does not continue his abusive conduct towards Janelle, and the  


court should exercise its discretion as the circumstances warrant.  


                   11                Hakas v. Bergenthal                                       , 843 P.2d 642, 644 n.3 (Alaska 1992) (quoting                                                                                       In re   

Marriage of McGee                                        , 613 P.2d 348, 350 (Colo. App. 1980)).                                                                          

                   12                Limeres v. Limeres, 320 P.3d 291, 296 (Alaska 2014) (quoting Sheffield v.  


Sheffield, 265 P.3d 332, 335 (Alaska 2011)).  


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V.                                           CONCLUSION  

                                                                                          We conclude that the court's primary motivation in maintaining shared                                                                                                                                                                                                                                                                                                                                                                                        

physical custody was that the arrangement continued to be in Elizabeth's best interests,                                                                                                                                                                                                                                                                                                                                                                                                                                                 

 and the court therefore did not abuse its discretion. Because the superior court did not                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      

 abuse its discretion when it weighed the best interest factors set out in AS 25.24.150(c),                                                                                                                                                                                                                                                                                                                                                                                                                

we AFFIRM the superior court's order.                                                                                                                                                                                              

                                                                                                                                                                                                                                                                                                          -9-                                                                                                                                                                                                                                                      7097

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