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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Daves v. McKinley (8/10/2018) sp-7269
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
ALEXANDER S. DAVES, )
) Supreme Court No. S-16751
Appellant, )
) Superior Court No. 3AN-08-07051 CI
v. )
) O P I N I O N
ALEXANDREA MCKINLEY and )
KATHRYN LEDLOW,
) No. 7269 - August 10, 2018
)
Appellees. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, William F. Morse, Judge.
Appearances: Alexander Daves, pro se, Youngstown, Ohio,
Appellant. No appearance by Appellees
Alexandrea McKinley and Kathryn Ledlow.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger,
and Carney, Justices.
MAASSEN, Justice.
I. INTRODUCTION
Thesuperior court awarded custody ofachild toher maternal grandmother.
When the father later moved for a modification of custody, the court denied the motion
on the ground that there had been no substantial change in circumstances. On appeal the
father argues that he should not have been required to show a substantial change in
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circumstances becausetheaward ofcustodyto thegrandmotherhad been only temporary
and he remained entitled to the parental preference.
We concludethat thefather'sargument has merit. The superior court's oral
remarks and written order granting custody to the grandmother, when read together,
indicate an intent that there would also be a transitional period during which the parties
would see how the child adapted to spending more time with her father, leaving open the
possibility that the transition would result in permanent custody with the father. We
conclude that in the absence of a grant of permanent custody to the grandmother, the
father remains entitled to the parental preference, and the grandmother continues to have
the burden of proving that the preference should be overcome.
II. FACTS AND PROCEEDINGS
A. Facts
Alexander Daves and Alexandrea McKinley met in Anchorage in the fall
of 2004. They dated for approximately a year and briefly lived together in late 2005 and
early 2006, first with her parents and then with his. They separated before the birth of
their daughter, V., in October 2006.
At first Alexandrea was V.'s primary caregiver, and Alexander had regular
visits. In April 2008, prompted by a dispute over visitation, Alexander filed a motion for
interim custody. In August the court entered a custody order based on the parties'
agreement that they would share legal custody, Alexandrea would have primary physical
custody, and Alexander would have weekend visitation. The parties largely followed
this schedule over the next several years, with some interruptions due to Alexandrea's
temporary moves with V. to Metlakatla.
In 2011 Alexander was admitted to medical school in Pennsylvania. In a
custody order that June the superior court continued the prior custody arrangement -
joint legal custody and primary physical custody with Alexandrea - but ordered that
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Alexander should have "reasonable visitation as his studies and the parties' finances
permit," as well as "at least twice weekly phone contact."
A series of custody orders in 2013 recognized the parties' continuing
difficulties with visitation: Alexander alleged that Alexandrea was refusing to allow his
1
visits and was leaving V. largely in the care of Kathryn Ledlow, Alexandrea's mother.
In September 2013 the court ordered a custody investigation. The report did not make
any recommendations because of the investigator's limited contact with the parties, but
among its conclusions was that "[i]t appears likely that the maternal grandmother
[Kathryn] has been the person providing much of [V.'s] care in Anchorage." The
superior court issued an order noting the report's completion and advising the parties that
it would take no action on the report unless one of them moved to modify custody;
neither one did.
The parties appeared to get along with little judicial involvement over the
next three years. Alexander had little contact with Alexandrea; his visits with V. were
facilitated through Kathryn.
B. Proceedings
Two custody proceedings in 2016 and 2017 are central to this appeal.
1. July 2016 order on Alexander's motion to modify custody
In April 2016 Alexander filed a motion seeking primary physical custody
of V. He identified several significant changes in his life: He was moving to Ohio for
his medical residency, expecting to live there for at least three years, and he and his
girlfriend intended to buy a house. He also alleged that there had been "new [criminal]
charges against [Alexandrea] which might be an indicator of her stability." The superior
1 Although Kathryn did not formally intervene in this case, we have
identified her as an appellee based on her participation in the trial court and role as a
custodial non-parent.
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----------------------- Page 4-----------------------
court found these allegations inadequate to show a substantial change in circumstances
affecting V.'sbest interests, but,afterAlexanderfiledasupplemental affidavitexpanding
on his allegations and alleging that Alexandrea had been leaving V.'s care entirely to
Kathryn, the court scheduled an evidentiary hearing.
Alexander and Kathryn appeared at the hearing, but Alexandrea did not.
No one had a lawyer. Kathryn testified that V. had been living with her for the past three
years and that she did not know Alexandrea's present whereabouts. She testified that she
would not allow Alexandrea to live with her because of her drinking, though "[w]hen
she's doing okay, I'll let her visit with [V.]." According to Kathryn, Alexandrea had not
spent a night with V. in three years; she testified that Alexandrea had "been around" -
"visiting" the child in Kathryn's home - "probably about 35, 40 percent" of the time.
Alexander testified abouthis most recentin-person visits withV.,including
four overnights a week during a month-long return to Alaska in October 2014 and a two-
week visit on the east coast in the spring of 2015. He testified that he had been
exercising his right to weekly visitation via Skype. He also testified about his new home,
explaining that he was ready for V. to move in with him permanently.
The court noted its assumption that V. had "bonded greatly with" Kathryn
because she had been "essentially the primary caregiver for three years"; Kathryn
interjected that it had actually been for nine-year-old V.'s entire life, other than about six
months when she was in Metlakatla with Alexandrea. The court asked Alexander "why
[it] should . . . switch this living arrangement given that [V.] has lived with her
grandmother essentially her entire life." Alexander responded that all prior custody
orders and agreements had been based on the misperception that V. lived with her
mother. The court acknowledged that Alexandrea had misrepresented her role in her
child's life and that the court had been unaware that Kathryn had always been the
primary caregiver. The court agreed this was "a little bit troubling."
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The court also noted its concern, however, that moving V. from her
grandmother's home to live with a father she had rarely seen in person would be
difficult, especially if the change were made abruptly. The court observed that "a more
prudent path for [V.] is to have her spend more time in Ohio during the summers and
keep open the possibility that she becomes more comfortable with the arrangement in
Ohio and more comfortable with the idea of living with [Alexander] there during the
school year." The court said that V. "deserves a transition, at a minimum, and should
spend more time with [Alexander] during the summer in preparation for the possibility
of spending the school year there." But the court cautioned it was possible that the
"transition, not the transition, but the switch, to her living [with Alexander] during the
school year never comes about because she is uncomfortable with that prospect." The
court disclaimed any suggestion "that there's something wrong with [Alexander], or [his
girlfriend] or with the home that [they] would create for [V.]"; the court was "more
concerned with the child being not capable of making the transition very easily." The
court said it would therefore "prefer to revisit the living arrangement after we see [V.'s]
response to Ohio and when she gets a tiny bit older. And prepare her for the possibility
that she's [going to] move to Ohio."
The discussion turned to the logistics of V.'s travel. The court said it
"would like to . . . have [V.] spend the remainder of the summer in Ohio with
[Alexander]" and asked Alexander and Kathryn to work out the details, which they
agreed to do. The court concluded that it "would explore a year from now - well, like
next May, sort of revisit this."
The court's written order, dated July 8, 2016, was entitled "First Final 2016
Child Custody Order." In it the court discussed the standard applicable to permanent
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2
grants of custody to non-parents and found "by clear and convincing evidence that it
would be detrimental to [V.] to be in the primary physical custody of either of her
parents, although for very different reasons." The court found that Alexandrea was
"currently unwilling and probably incapable of parenting [V.]" because of her alcohol
abuse. As for Alexander, the court did not find that he was unable to parent; rather, it
found that "[i]t would be detrimental to [V.] to reside with [Alexander] at this time . . .
because he has not been playing that role for some years because of his absence from
Alaska while he pursues medical training." The court noted that it "would begin that
transition [to Alexander's custody] now" if Alexander were "in Anchorage so that the
Court could reintroduce [V.] to life in her father's home more gradually." "But the
prospect of simply sending [V.] to [Alexander] and removing her from [Kathryn], the
sole source of stability and dependable care that she has known, would be damaging to
her." Alexander subsequently filed two documents which were construed as motions to
reconsider and were denied. Alexander did not appeal the July 2016 order.
2. June 2017 order on Alexander's motion to modify custody
Alexander filed additional motions in December 2016, seeking physical
custody of V. and an order for a custody investigation. The superior court ordered a
limited custody investigation in March 2017, and the report was completed in May. The
report made no recommendations about custody.
In June the court issued an order denying Alexander's December motion.
3 the court determined that Alexander was no longer entitled to
Citing Abby D. v. Sue Y. ,
2 See Evans v. McTaggart , 88 P.3d 1078 (Alaska 2004); Turner v. Pannick ,
540 P.2d 1051 (Alaska 1975).
3 378 P.3d 388, 392 (Alaska 2016) ("In its initial resolution of a custody
dispute between a biological parent and any third party, including a grandparent, the
(continued...)
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----------------------- Page 7-----------------------
a biological parent's preference because the court had awarded Kathryn permanent
custody in its July 2016 order, and that Alexander failed to meet his burden of proving
there had been a substantial change in circumstances justifying a hearing on whether the
existing arrangementshouldbemodified. ThecourtrejectedAlexander's contention that
the court had promised to revisit custody in May 2017, concluding that it had agreed
only to revisit the logistics of the 2017 summer visit. The court found that its earlier
comments did not "warrant further review of custody."
Alexander timely appealed the June 2017 order.
III. STANDARD OF REVIEW
The superior court has broad discretion in custody awards. 4 In this case,
the superior court's 2017 denial of Alexander's motion for modification of custody turns
on interpretation of the July 2016 custody order. We recognize that "the court that
entered the original order is in the best position to interpret its own order," and we
therefore "review the superior court's interpretation of its own order for abuse of
5
discretion."
3 (...continued)
court must prefer the biological parent. . . . But '[w]hen the non-parent has already been
granted permanentcustody, theparental preferencedrops out in subsequent modification
proceedings.' " (emphasis added) (second alteration in original) (quoting Evans, 88 P.3d
at 1085 n.32)).
4 Dara v. Gish, 404 P.3d 154, 159 (Alaska 2017).
5 Del Rosario v. Clare, 378 P.3d 380, 383-84 (Alaska 2016).
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----------------------- Page 8-----------------------
IV. DISCUSSION
Alexander raises a number of challenges on appeal to the permanent award
of V.'s custody to Kathryn.6
We do not need to reach most of them, because we
conclude, for the reasons that follow, that the custody award was temporary and
Alexander remains entitled to the biological parent preference.
A. It Was An Abuse of Discretion To Interpret The July 2016 Custody
Order As An Order For Permanent Custody.
"In its initialresolutionofacustody disputebetween abiological parent and
7
any third party, including a grandparent, the court must prefer the biological parent."
Under this preference, the biological parent prevails unless the non-parent shows "by
clear and convincing evidence that the parent is unfit or that the welfare of the child
8
requires the child to be in the custody of the non-parent." If the non-parent is granted
permanent custody, however, then "the parental preference drops out in subsequent
9
modification proceedings." "At that point any modification motion is subject to the
6 In addition to challengingthecourt's application oftheparental preference,
Alexander argues that the court's award of custody to Kathryn violated his constitutional
rights and the evidentiary rules and that he was entitled to a hearing on modification of
custody under a "substantial change in circumstances" standard.
7 Abby D. , 378 P.3d at 392 (citing Turner, 540 P.2d at 1053-54).
8 Dara, 404 P.3d at 161 (quoting Osterkamp v. Stiles, 235 P.3d 178, 185
(Alaska 2010)).
9 Abby D. , 378 P.3d at 392 (quoting Evans v. McTaggart, 88 P.3d 1078, 1085
n.32 (Alaska 2004)).
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----------------------- Page 9-----------------------
usual test of AS 25.20.110(a), meaning that the custody decree will be modified only 'if
the court determines that a change in circumstances requires the modification of the
10
award and the modification is in the best interests of the child.' "
Alexander argues that the superior court erred in its June 2017 order when
it failed to apply the biological parent preference and determined that Alexander now
bore the usual burden of a non-custodial parent moving to modify the existing custody
arrangement. We agree with Alexander's argument. We have observed that "[c]ourts
should make clear whether a grant of nonparental custody is temporary or permanent,
11
and ensure that they carefully warn a parent that a hearing may have the latter result."
Having reviewed the hearing and the July 2016 order on Alexander's motion to modify
custody, we conclude that whatever the court's intent, it was not made clear to Alexander
that the court was then making a permanent grant of custody to Kathryn. Alexander
couldreasonably believe that the court was making atemporary custody order that would
be subject to de novo review in May 2017.
We have faced similar issues in the past. In Britt v. Britt the parties agreed
as part of the initial custody decree that the grandparents would have custody of their
child.12 After an evidentiary hearing six months later, the superior court denied the
mother's motion that she be granted custody instead.13 On appeal the mother argued that
the grandparents should have had the burden at the hearing of overcoming the Turner
10 Id. (quoting Hunter v. Conwell , 219 P.3d 191, 196 (Alaska 2009)).
11 C.R.B. v. C.C., 959 P.2d 375, 381 n.12 (Alaska 1998), overruled on other
grounds by Evans, 88 P.3d 1078.
12 567 P.2d 308, 309 (Alaska 1977), overruled on other grounds by Evans,
88 P.3d 1078.
13 Id.
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14
biological parent preference, as the prior award was only temporary; but the father
argued that the prior award was permanent and the subsequent hearing was simply a
modification proceeding at which the moving party, here the mother, bore the burden of
15 Although noting that both parties had apparently intended the initial award to
proof.
be permanent, our decision centered on the fact that the superior court, in making that
award, had sua sponte ordered a six-month review "to see if there's been any changes
in the status of either parent or the grandparents."16 We held that because "the court
indicated a desire to review the initial decision in six months without the necessity of any
[motion for modification]," the order was best characterized as temporary rather than
permanent, and the mother remained entitled to the Turner preference until a permanent
order was made.17
18 In that case the
We reached a different conclusion in Abby D. v. Sue Y.
mother moved to modify custody nine months after a trial at which the superior court had
awarded permanent custody to the grandparents; like the parent in Britt, the mother
argued that the prior award had been merely temporary and she remained entitled to the
Turner preference.19 The superior court rejected her argument and we affirmed,
concluding that the superior court had properly applied the Turner preference at the
initial trial while making it clear that the resulting custody award was "permanent and
14 See Turner v. Pannick , 540 P.2d 1051, 1055 (Alaska 1975).
15 Britt, 567 P.2d at 310.
16
Id. at 309-10.
17 Id. at 310.
18
378 P.3d 388 (Alaska 2016).
19 Id. at 391-92.
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20
final." We rejected the mother's suggested comparison to Britt, in which the superior
court had expressly scheduled a six-month review of its initial custody order; we
concluded that the superior court's observations in Abby D. that its award of custody to
the grandparents was "not written in stone" and "doesn't mean it has to happen forever"
simply reflected the fact that permanent awards are subject to motions for modification. 21
We conclude that this case is more analogous to Britt than to Abby D.
Although the July 2016 custody order applied the Turner preference and made what
appeared to be a permanent award of custody to Kathryn, the proceedings leading up to
that order and even some language of the order itself convince us it must be considered
temporary.
Kathryn never sought to formally intervene in the case, nor did she file her
22 The court's July 2016
own motion for custody, as she may have been entitled to do.
custody order was prompted by Alexander's motion for modification of custody. The
court's first order on the motion assumed that it presented the usual custody dispute
between biological parents - that is, whether primary physical custody should remain
where the court assumed it was, with the child's mother, Alexandrea. After Alexander
alleged that Alexandrea was actually not involved in V.'s care, the court's next order,
scheduling a hearing, referred not to the standard for granting permanent custody to a
non-parent but rather to the standard for ordering non-parent visitation.23 Alexander had
20 Id. at 393.
21 Id. at 393-94.
22 See Elton H. v. Naomi R., 119 P.3d 969, 979 (Alaska 2005) ("[A] court may
award custody to a non-party who would have been entitled by right to intervene as a
party in the custody proceedings pursuant to Alaska Civil Rule 24(a).").
23 The superior court quoted from Ross v. Bauman, 353 P.3d 816, 828-29
(continued...)
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not yet been advised that his motion could result in a permanent award of custody to
Kathryn. As we observed in Elton H. v. Naomi R. , "[a]warding custody to a non-party
may implicate due process concerns when a party lacks notice that such an award is
being considered." 24
The evidentiary hearing is described in more detail above. In brief, after
it became clear that the court had been misled and that Kathryn, not Alexandrea, had
actually been exercising primary custody of V. for years, the court's comments indicated
that it was seriously considering a gradual transition to Alexander's care in Ohio.
Though wanting to avoid an "abrupt[]" change, the court noted "a more prudent path":
"to have [V.] spend more time in Ohio during the summers and keep open the possibility
that she becomes more comfortable with the arrangement in Ohio and more comfortable
with the idea of living with [Alexander] there during the school year." The court
reiterated several times that there would be an extended experimental period: "[V.]
should spend more time with [Alexander] during the summer in preparation for the
possibility of spending the school year there"; "to sort of explore her reaction to living
a long period of time in Ohio, I would prefer to see her . . . spend the remainder of the
summer in Ohio but return here to Alaska, and then we revisit the living arrangement
after we see her response to Ohio and when she gets a tiny bit older"; this would
"prepare her for the possibility that she's going to move to Ohio for fifth grade or sixth
grade or junior high." And toward the end of the hearing the court said it "would explore
23 (...continued)
(Alaska 2015), where we stated that a grandparent seeking visitation over the wishes of
an "otherwise fit parent[]" "must prove by clear and convincing evidence that it is
detrimental to the child to limit visitation with the third party to what the child's
otherwise fit parents have determined to be reasonable."
24 119 P.3d at 979.
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a year from now - well, like next May, sort of revisit this," including both Alexandrea's
involvement with V.'s care and, more importantly, V.'s "relationship with her
grandmother."
It was only in the court's subsequent written order that it cited the law that
applies to a grant of permanent custody to a non-parent and found that Kathryn should
25 But the order can still be read as consistent with the court's oral
have custody of V.
remarks; it reads, "It would be detrimental to [V.] to reside with [Alexander] at this
time. . . . If he was in Anchorage so that the Court could reintroduce [V.] to life in her
26 The
father's home more gradually, then the Court would begin that transition now."
order reaffirms the court's oral finding that it would be too damaging to V. to simply
change custody abruptly from Kathryn to Alexander. The order thus appears to keep
alive the idea of a transitional period as an alternative to an immediate modification of
physical custody.
We conclude that when Alexander next moved for modification of custody
in November 2016, he could have reasonably believed that the July custody award to
Kathryn was temporary because they were in an experimental phase, exploring the
possibility of a gradual transition to his custody. We give deference to the superior
court's contrary interpretation of its own order27 - in denying Alexander's November
motion the court believed it had already resolved the issue of permanent custody,
25 At the evidentiary hearing the court had mistakenly informed Alexander
that he bore "the burden of proving that the change [in custody] should occur." The
court's written order, however, correctly stated the burden on the non-parent to prove by
clear and convincing evidence that awarding custody to the parent would be clearly
detrimental to the child.
26 Emphases added.
27 Del Rosario v. Clare, 378 P.3d 380, 383-84 & nn.10-11 (Alaska 2016).
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----------------------- Page 14-----------------------
eliminating Alexander's right to the biological-parent preference. But our overriding
28
concern is with Alexander's right to clarity on the issue.
In interpreting the court's July 2016 order we take into consideration other
parts of the record, including the court's oral remarks at the hearing to the extent they
may clarify the written order.29 We conclude that the court's oral remarks and written
order read together, as in Britt, indicate an intent to create a temporary custody
arrangement subject to further review the next May and perhaps beyond.30 Interpreting
the order as permanent and dispositive of Alexander's parental preference was an abuse
of discretion. The parental preference therefore did not drop out,31 and Kathryn
continues to have the burden of proving by clear and convincing evidence that the
preference should be overcome.32
28 Elton H. , 119 P.3d at 979-80 (holding that one of four conditions limiting
trial court's discretion to award custody to non-party is "notice that such an award is
being considered"); C.R.B. v. C.C. , 959 P.2d 375, 381 n.12 (Alaska 1998) ("Courts
should make clear whether a grant of nonparental custody is temporary or permanent,
and ensure that they carefully warn a parent that a hearing may have the latter result."),
overruled on other grounds by Evans v. McTaggart , 88 P.3d 1078 (Alaska 2004).
29 Del Rosario, 378 P.3d at 384 ("All parts of an order are read together and
are considered as a whole," and "[t]he record [also] should be taken into consideration
in determining the intent, scope[,] and effect of an order." (second and third alterations
in original); Brandal v. Shangin, 36 P.3d 1188, 1195-96 (Alaska 2001) ("[W]e look to
both the oral comments and the written findings of fact and conclusions of law to clarify
the scope of [an] order.").
30 See Britt v. Britt, 567 P.2d 308, 310 (Alaska 1977), overruled on other
grounds by Evans, 88 P.3d 1078.
31 See Abby D. v. Sue Y., 378 P.3d 388, 392 (Alaska 2016).
32 See Dara v. Gish, 404 P.3d 154, 161 (Alaska 2017).
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V. CONCLUSION
The order denying Alexander's motion to modify custody is REVERSED
and the case is REMANDED for proceedings consistent with this opinion.
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