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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Judd v. Burns (7/7/2017) sp-7184
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
TRAVIS M. JUDD, )
) Supreme Court No. S-16213
Appellant, )
) Superior Court No. 4FA-13-01989 CI
v. )
) O P I N I O N
AMANDA BURNS f/k/a JUDD, )
) No. 7184 - July 7, 2017
Appellee. )
)
A
ppeal from the Superior Court of the State of Alaska,
Fourth Judicial District, Fairbanks, Michael P. McConahy,
Judge.
Appearances: Mila A. Neubert, Neubert Law Office, LLC,
Fairbanks, for Appellant. Margaret O'Toole Rogers, Foster
& Rogers, LLC, Fairbanks, for Appellee.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger,
and Carney, Justices.
MAASSEN, Justice.
I. INTRODUCTION
Divorced parents shared custody of their son equally pursuant to a
parenting agreement. The mother asked the superior court to modify the agreement to
allow her to move with the child to Hawaii. Following a two-hour hearing the court
modifiedcustody, granting primary physical custody to the mother; it also modified legal
custody to allow the mother final decision-making authority, subject to later court
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ratification, though neither party had asked that legal custody be modified. The father
appeals.
We conclude that the superior court did not clearly err or abuse its
discretion when it granted modification and awarded primary physical custody to the
mother, and we affirm that part of the court's decision. But we hold that it was an abuse
of discretion to modify legal custody when neither party had requested it, the parties
were not on notice that it was at issue, and the evidence did not demonstrate a need for
it. We therefore vacate the modification of legal custody.
II. FACTS AND PROCEEDINGS
A. The Parenting Agreement
Travis Judd and Amanda Burns were married in 2008 and have a son, H.,
1 The
who was born in 2011. Amanda also has another son, K., from a prior marriage.
couple separated in May 2013. Amanda received a default divorce, but when Travis
appeared with new counsel the court set the default aside in August 2014 and scheduled
a custody trial for the following year.
In the meantime the court left in place the custody order entered after
default, granting Amanda sole legal and primary physical custody, with reasonable
visitation for Travis. The court also referred the case to a child custody investigator for
early evaluation, possible settlement discussions, and an investigation if the parties could
not settle.
In October 2014 Travis moved for temporaryordersgranting joint legal and
shared physical custody. In February 2015, as the scheduled hearing on the motion was
about to begin, the parties stipulated to temporary orders by which they shared legal
1
We identify the children by their initials in order to better protect their
privacy.
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custody, Amanda had primary physical custody, and Travis had regular daytime
visitation. They agreed that Travis's visitation wouldincreaseto includeovernights once
he obtained a substance abuse assessment and complied with any resulting
recommendations.
Through mediation, the parents were then able to reach a permanent
parenting agreement before trial. They agreed to joint legal custody and that they would
gradually transition to shared physical custody as Travis satisfied certain conditions,
including moving fromhis dry cabin to more conventional housing, undergoing an anger
management assessment, and completing any recommended treatment. Travis and
Amanda would ultimately share physical custody 50-50 once the conditions were
satisfied.
By August 2015 Travis had obtained conventional housing, had completed
the assessment, and had attended recommended classes. The parties began sharing
custody equally a month later.
B. Amanda's Motion To Modify Custody
In September 2015 - shortly after the parties began sharing custody
equally - Amanda filed a motion to modify the custody agreement to award her primary
physical custody. She explained that she planned to move to Hawaii before the start of
the 2016 school year with her new husband and K., her older son, and she wanted H. to
2 She asserted that the move would provide "opportunities for a larger
move with them.
income, increased family stability, and a better environment" as well as "open doors for"
the two boys. She wanted H. to live with her in Hawaii during the school year and have
"liberal summer and holiday visitation" with Travis in Fairbanks.
2 The parties agree that Amanda's possible move to Hawaii was at least
mentioned during the mediation that resulted in the parenting agreement, though the
consequences of the move were not formally addressed or resolved at that time.
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Travis opposed the modification, arguing that the move was intended to
avoid sharing custody and was not in H.'s best interests. He pointed to Amanda's history
with K. and contended that he and Amanda "actually got married when they did . . .
because Amanda believed that being married and planning to move out of state (at that
time, Texas) would make it easier for her to obtain primary physical custody of [K.]."
According to Travis, Amanda's history with K.'s father demonstrated the unlikelihood
that she would help maintain a strong long-distance relationship between Travis and H.
Travis also requested appointment of another custody investigator, a request the court
denied.
The court found that Amanda's allegations justified an evidentiary hearing
and scheduled a two-hour hearing to decide two relevant issues: whether Amanda's
proposed move was legitimate and whether moving to Hawaii with Amanda was in H.'s
3 Following the hearing, the court agreed with Amanda's position on both
best interests.
issues. It granted the requested modification, awarding Amanda primary physical
custody and Travis summer and holiday visitation. The court also modified legal
custody, granting Amanda final say on legal custody issues but requiring her to seek the
court's approval within ten days of a disputed decision.
Travis appeals, raising these issues: (1) whether the superior court clearly
erred in finding that Amanda's planned move was legitimate; (2) whether the court
abused its discretion when it failed to order a custody investigation; (3) whether the court
abused its discretion by limiting the evidentiary hearing to two hours; (4) whether the
court abused its discretion when it decided that it was in H.'s best interests to move to
Hawaii with Amanda; and (5) whether the court abused its discretion by modifying legal
custody.
3 See Rego v. Rego, 259 P.3d 447, 453 (Alaska 2011).
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III. STANDARDS OF REVIEW
"Superior courts have broad discretion in child custody decisions, and we
will reverse only if findings of fact are clearly erroneous or if the superior court abused
4
its discretion." "A factual finding is clearly erroneous when a review of the record
leaves the court with a definite and firm conviction that the superior court has made a
5
mistake."
"An abuse of discretion exists where the superior court 'considered improper
factors in making its custody determination, failed to consider statutorily mandated
factors, or assigned disproportionate weight to particular factors while ignoring
6
others.' " "Additionally, an abuse of discretion exists if the superior court's decision
7 We apply "the abuse
denied a substantial right to or substantially prejudiced a party."
of discretion standard to review a trial court's decisions relating to appointment of a child
custody investigator."8
IV. DISCUSSION
"Alaska Statute 25.20.110 authorizes courts to modify child-custody and
visitation awards if (1) there has been a change in circumstances that justifies
modification and (2) the modification is in the best interests of the child."9 "We have
4 Riggs v. Coonradt, 335 P.3d 1103, 1106 (Alaska 2014) (citing Ronny M.
v. Nanette H. , 303 P.3d 392, 399 (Alaska 2013)).
5 Id. (quoting Ronny M., 303 P.3d at 399).
6 Id. (quoting Ronny M., 303 P.3d at 399).
7 Ronny M., 303 P.3d at 400 (citing House v. House, 779 P.2d 1204, 1206
(Alaska 1989)).
8 Littleton v. Banks, 192 P.3d 154, 157 (Alaska 2008) (quoting Ogden v.
Ogden, 39 P.3d 513, 516 n.2 (Alaska 2001)).
9 Rego v. Rego, 259 P.3d 447, 452 (Alaska 2011) (citing Melendrez v.
(continued...)
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held that a custodial parent's decision to move out-of-state . . . amounts to a [substantial]
change in circumstances as a matter of law" for purposes of physical custody
10
modifications. Accordingly, both parties in this case agree that Amanda's proposed
move constitutes a change in circumstances that may justify a modification of physical
custody.
When deciding whether to modify custody because of a parent's planned
move, the superior court must determine "whether there are legitimate reasons for the
11
move."
If the move is legitimate, "there is no presumption favoring either parent when
12
the court considers the child's best interests." "The relocating parent secures primary
custody by showing that living with that parent in a new environment better serves the
13
child's interests than living with the other parent in the current location." "The ultimate
14
focus of the custody modification statute is the best interests of the children."
9 (...continued)
Melendrez, 143 P.3d 957, 962 (Alaska 2006)).
10 Id. (alterations in original) (quoting Barrett v. Alguire , 35 P.3d 1, 6 (Alaska
2001)).
11 Id. at 453 (citing Barrett, 35 P.3d at 6).
12 Id. (citing McQuade v. McQuade, 901 P.2d 421, 424 (Alaska 1995)).
13 Id.
14 Lashbrook v. Lashbrook, 957 P.2d 326, 328-29 (Alaska 1998).
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