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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Brett M. v. Amber M. (8/2/2019) sp-7390
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
BRETT M., )
) Supreme Court No. S-17162
Appellant, )
) Superior Court No. 1JU-17-00861 CI
v. )
) O P I N I O N
AMANDA M., )
) No. 7390 - August 2, 2019
Appellee. )
)
A
ppeal from the Superior Court of the State of Alaska, First
Judicial District, Juneau, Louis J. Menendez, Judge.
Appearances: Gabriel E. Sassoon, Baxter Bruce & Sullivan
P.C., Juneau, for Appellant. Kevin Higgins, Law Office of
Kevin Higgins, Juneau, for Appellee.
Before: Bolger, Chief Justice, Winfree, Stowers, Maassen,
and Carney, Justices.
BOLGER, Chief Justice.
I. INTRODUCTION
A Juneau couple with three children separated, and the mother filed for
divorce. Wishing to relocate with the children to Oregon for work, she requested
primary physical custody. The superior court concluded that it was in the children's best
interests to relocate with the mother. The father appeals. We conclude that the superior
----------------------- Page 2-----------------------
court's custody decision is supported by the record and follows the appropriate legal
framework, so we affirm.
II. FACTS AND PROCEEDINGS
A. Facts
Brett and Amanda M. married in 2006. They have three children: Jacob,
1
Randall, and Marie.
Marie sees an ophthalmologist in Seattle to treat an eye condition.
She has also experienced developmental delays, and an individual education program
(IEP) has been created for her that includes speech and physical therapy.
Brett and Amanda were living in Oregon when Jacob was born but moved
to Juneau in 2008. They are both trained as physicians - Brett is a general surgeon and
Amanda is a pediatrician - and they moved to Juneau for work. After Randall's birth
they agreed that Amanda would stop practicing medicine to raise the children and that
Brett would work extra hours to support the family.
The couple separated in August 2016 when Brett moved out of the family
home. The children thereafter stayed with Brett several nights a week.
About a year after the separation, Amanda sought employment with a
former colleague in Roseburg, Oregon. The former colleagueofferedAmandaa position
in her practice in May 2018, and Amanda decided to relocate to Oregon.
B. Proceedings
Amanda filed for divorce in September 2017, requesting physical custody
of the children. The Juneau superior court held a three-day trial in June 2018. Much of
the trial concerned the legitimacy of Amanda's proposed move. Amanda testified that,
to allow for more time with the children, she did not want to work full time, and that
there were no suitable part-time pediatric positions available in Juneau. She explained
1
Pseudonyms have been used for all family members to protect their privacy.
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that she was familiar with Roseburg and believed she could ease back into her medical
practice there in a way that ensured she had time to spend with the children. She
presented the testimony of two Juneau pediatricians to support her position about job
opportunities there. Amanda's would-be Oregon colleague also testified about her
practice in Roseburg.
Brett called the director of physician services at Bartlett Regional Hospital
in Juneau to rebut this testimony. Brett testified that he had alerted Amanda to three job
openings while they were separated but that Amanda did not pursue them. He said that
it would be difficult for him to travel to Roseburg to visit the children and that Amanda
could have sought employment somewhere closer to Juneau.
Brett also testified that during the couple's separation, there were two
incidents when Amanda refused to leave the children with him after an argument, taking
them out of his car and interrupting a planned custody exchange. Amanda admitted that
these incidents occurred. Brett also testified that Amanda had sent him a text threatening
to interrupt a trip he had planned with the children to Florida.
At the close of testimony, the superior court issued an oral decision on the
record awarding physical custody of the children to Amanda. The court first found that
Amanda's proposed move to Roseburg was legitimate and not motivated by a desire to
2 The court next addressed each statutory best
frustrate Brett's access to the children.
2 "[D]etermining what custody arrangement is in the best interests of the
child" when a parent chooses to move out of Alaska includes "determining whether there
are legitimate reasons for the move." Moeller-Prokosch v. Prokosch (Moeller-
Prokosch I ), 27 P.3d 314, 316 (Alaska 2001). A proposed move is legitimate if it is not
"primarily motivated by a desire to make visitation more difficult." Rego v. Rego , 259
P.3d 447, 453 (Alaska 2011).
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----------------------- Page 4-----------------------
3
interests factor in AS 25.24.150(c), finding that the fifth factor - geographic and
3 Alaska Statute 25.24.150(c) provides:
The court shall determine custody in accordance with the best
interests of the child under AS 25.20.060-25.20.130. In
determining the best interests of the child the court shall
consider
(1) the physical, emotional, mental, religious,
and social needs of the child;
(2) the capability and desire of each parent to
meet these needs;
(3) the child's preference if the child is of
sufficient age and capacity to form a
preference;
(4) the love and affection existing between the
child and each parent;
(5) the length of time the child has lived in a
stable, satisfactory environment and the
desirability of maintaining continuity;
(6) the willingness and ability of each parent to
facilitate and encourage a close and continuing
relationship between the other parent and the
child, except that the court may not consider
this willingness and ability if one parent shows
that the other parent has sexually assaulted or
engaged in domestic violence against the parent
or a child, and that a continuing relationship
with the other parent will endanger the health or
safety of either the parent or the child;
(7) any evidence of domestic violence, child
abuse, or child neglect in the proposed custodial
household or a history of violence between the
(continued...)
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----------------------- Page 5-----------------------
emotional stability - favored Amanda, while the remaining factors favored neither
parent. Exercising its discretion under AS 25.24.150(c)(9), the court considered
additional factors it deemed pertinent, finding that Brett had the resources to exercise
liberal visitation, despite the distance between Roseburg and Juneau, and expressing
confidence that he would continue to be involved in the children's lives.
After trial Brett filed a motion for reconsideration, which the court denied.
Brett appeals both the custody order and the denial of his motion for reconsideration.
III. DISCUSSION
Brett argues that the superior court violated the law governing custody
determinations and made clearly erroneous factual findings when it awarded custody to
Amanda and denied Brett's motion for reconsideration. We conclude that the superior
court did neither.
A. The Superior Court Did Not Commit Legal Error.
Brett contends that the superior court's order and its denial of his motion
for reconsideration, taken together, fail to comply with the legal standards governing
custody decisions. He specifically argues that (1) the superior court's findings were
inadequate as a matter of law, (2) the superior court impermissibly based its decision on
Amanda's primary caregiver status, and (3) the superior court did not engage in the
3 (...continued)
parents;
(8) evidence that substance abuse by either
parent or other members of the household
directly affects the emotional or physical
well-being of the child;
(9) other factors that the court considers
pertinent.
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----------------------- Page 6-----------------------
symmetrical analysis required when one parent plans to relocate. We review de novo
whether the superior court applied the correct legal standard. 4
1. The superior court's factual findings were adequate.
We have explained that "[i]n reaching a final child custody determination,
'a trial court is required to make findings on the various statutory factors which are
5
sufficient to make the basis of its decision susceptible to review.' "
This requirement
6 7
stems from AS 25.24.150(c). The court's findings "need not be extensive" but must
be sufficient to demonstrate which of the nine best interests factors influenced the
8
custody decision as well as how they were weighed against each other.
The superior court here explicitly addressed each best interests factor and
made clear that factors five and nine - the length of time the child has lived in a stable
home and desirability of continuity, and other factors the court deems pertinent -
4 Bruce H. v. Jennifer L. , 407 P.3d 432, 436 (Alaska 2017).
5 Smith v. Weekley , 73 P.3d 1219, 1222 (Alaska 2003) (quoting Duffus v.
Duffus, 932 P.2d 777, 779 (Alaska 1997)).
6 See AS 25.24.150(c) ("In determining the best interests of the child the
court shall consider . . . ." (emphasis added)).
7 Borchgrevink v. Borchgrevink, 941 P.2d 132, 139 (Alaska 1997).
8 See Smith, 73 P.3d at 1227 ("Because it is not clear to us which factors the
superior court considered important or what other considerations were involved in
reaching its decision, we remand for the superior court to make specific findings on all
relevant factors as required by AS 25.24.150(c)."); Borchgrevink, 941 P.2d at 139
(stating that findings supporting custody decision "must either give us a clear indication
of the factors which the superior court considered important in exercising its discretion
or allow us to glean from the record what considerations were involved").
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----------------------- Page 7-----------------------
formed the basis of its decision. These findings are sufficient for meaningful appellate
review and not inadequate as a matter of law. 9
2. The superior court engaged in proper symmetrical analysis of
best interests factor five.
In a custody decision when one parent intends to move from Alaska, the
10
trial court must use a two-step process to determine the children's best interests. The
11
court must first "determine whether the planned move is 'legitimate.' " If the move is
legitimate, the court must assume that the move will occur and engage in "symmetric
consideration of the consequences to [the child] both if [the parent] leaves with [the
12
child] and if [the parent] leaves without [the child]." We have stressed that a
symmetrical analysis of the fifth best interests factor is especially important and requires
13
the court to consider both the emotional and geographic stability of the child.
The superior court found that the children would have greater geographical
stability in Juneau, where they had spent their whole lives, but this was outweighed by
9 See Borchgrevink , 941 P.2d at 139. Brett argues that the superior court's
findings are inadequate because they do not spell out how the court weighed particular
pieces of evidence when analyzing each best interests factor. But this argument
misunderstands appellate review of custody orders. Once a court has identified the best
interests factors relevant to its decision, we review the individual findings for clear error
and how the factors were balanced for abuse of discretion. See Blanton v. Yourkowski ,
180 P.3d 948, 951 (Alaska 2008).
10 Saffir v. Wheeler, 436 P.3d 1009, 1013 (Alaska 2019).
11 Mengisteab v. Oates, 425 P.3d 80, 85 (Alaska 2018) (quoting Moeller-
Prokosch I, 27 P.3d 314, 316 (Alaska 2001)).
12 Saffir, 436 P.3d at1013 (alterations inoriginal) (quoting Moeller-Prokosch
v. Prokosch, 99 P.3d 531, 535-36 (Alaska 2004)).
13 See, e.g., id. at 1013-14; Mengisteab, 425 P.3d at 87; Andrea C. v. Marcus
K., 355 P.3d 521, 529 (Alaska 2015); see also AS 25.24.150(c)(5).
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----------------------- Page 8-----------------------
Amanda's "ability . . . to provide superior emotional stability." The court explained its
reasoning further in its denial of Brett's motion for reconsideration, stating that it
understood, appreciated, and accounted for [Brett's] capacity
to provide his children emotional care and support. It also
considered that [Jacob, Randall, and Marie] grew up in
Juneau. . . . The facts, however, indicated that the emotional
stability [Amanda] provided was so profound and nuanced
that it outbalanced the emotional and geographical stability
[Brett] can provide.
This analysis did not suffer from the same imbalance that has characterized
orders reversed for failure to conduct symmetrical analysis. In Saffir v. Wheeler , for
example, the superior court awarded custody to the father after finding that the mother
14 We reversed,
would interfere with his ability to parent if she relocated with the child.
holding that the superior court had not engaged in proper symmetrical analysis because
it "did not address the impact of removing the child from her established routine or from
[her mother], the parent who established it."15 The order here was not so one-sided; it
considered the effect that living with each parent, and without the other, would have on
the children. The superior court properly engaged in the symmetrical analysis required
by our precedent.
3. The superior court did not impermissibly consider Amanda's
primary caregiver status.
The superior court relied heavily on its finding that Amanda had been the
children's primary caregiver in its analysis of the fifth best interests factor. Brett argues
that Amanda's "alleged past primary caregiver status is, as a matter of law, not adequate
14 436 P.3d at 1014.
15 Id. ; see also Mengisteab, 425 P.3d at 87 (holding that "the court erred in
failing to adequately consider the effect living in Alaska without his mother and siblings
would have on continuity and stability in [the child's] life").
-8- 7390
----------------------- Page 9-----------------------
to support" the superior court's findings. He also suggests that whether a parent is the
primary caregiver is not relevant to the fifth best interests factor.
WhileAlaskalaw"does not automaticallygiveacustodialpreferenceto the
primary caregiver," we have explained that "the primary caregiver inquiry may be
relevant to the extent that it affects the determination of the child's 'stable, satisfactory
16 In fact we have
environment and the desirability of maintaining continuity.' "
explicitly stated that "[c]ourts should consider 'social and emotional factors such as who
the primary caregiver was for the child' " when analyzing factor five.17 Accordingly it
was not legal error for the superior court to consider Amanda's primary caregiver status
as an element in its fifth best interests factor determination. And Amanda's role as
primary caregiver was not the sole basis for the court's finding; the superior court also
considered her intention to limit her future work to part time and weighed the geographic
and emotional stability of the children staying in Juneau with Brett against the emotional
stability staying with Amanda would provide.
B. The Superior Court's Factual Findings Are Not Clearly Erroneous.
Brett also argues that several of the superior court's findings were clearly
18
erroneous. "A factual finding is erroneous if 'based on a review of the entire record,
the finding leaves us with a definite and firm conviction that a mistake has been
16 Blanton v. Yourkowski, 180 P.3d 948, 953 (Alaska 2008) (quoting
AS 25.24.150(c)(5)).
17 veselsky v. veselsky, 113 P.3d 629, 635 (Alaska 2005) (quoting Rooney v.
Rooney, 914 P.2d 212, 217 (Alaska 1996)).
18 See Blanton, 180 P.3d at 951 (stating that custody determination "will not
be set aside unless the record shows that its controlling findings of fact are clearly
erroneous or that the court abused its discretion").
-9- 7390
----------------------- Page 10-----------------------
19
made.' " Brett specifically contests the findings that Amanda's move to Roseburg was
legitimate, that factor one favored neither parent, that factor five favored Amanda, that
factor six favored neither parent, and that additional considerations under factor nine
supported the custody decision. Because each of the superior court's findings has
support in the record, we conclude that none are clearly erroneous.
1. The finding that Amanda's move to Roseburg was legitimate is
not clearly erroneous.
A parent's plan to relocate is considered legitimate if it is "not primarily
motivated by a desire to make visitation . . . more difficult." 20
The superior court here
found that Amanda's proposed move to Roseburg was legitimate because it was
motivated by a desire to find employment as a pediatrician; the court found that such
employment was not available to her in Juneau. It noted that Amanda had a job offer in
Roseburg and relied on the Juneau doctors' testimonies to conclude it would be difficult
for Amanda to find employment as a pediatrician after spending eight years out of the
workforce. The court further found that Amanda's proposed move was not "made for
any effort to frustrate access to the children." These findings have support in the record.
Amanda testified that there were no suitable positions available with local
providers. And other testimony indicated it would be infeasible for Amanda to open her
own practice in Juneau because the market was saturated and doing so would require
long hours. Therefore the court's finding that there was no suitable pediatric work
available to Amanda in Juneau is supported by the record.
19 Bruce H. v. Jennifer L. , 407 P.3d 432, 436 (Alaska 2017) (quoting Rego v.
Rego, 259 P.3d 447, 452 (Alaska 2011)).
20 Mengisteab, 425 P.3d at 85 (alteration in original) (quoting Moeller-
Prokosch I, 27 P.3d 314, 316 (Alaska 2001)).
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There is also support for the court's finding that Amanda had found a job
in Oregon. Her former colleague testified that she had offered Amanda a job in her
Roseburg practice and sent her a preliminary contract. Although Amanda testified that
she and her former colleague were still working out the details of her employment,
Amanda indicated that it would be part time.
Finally the record supports thecourt's findingthatAmanda's movewas not
motivated by a desire to interfere with Brett's parenting. Amanda expressed regret over
having interfered with Brett's visitation during their separation; she testified that she
would not do so again, saying "[t]he kids deserve their time with their dad, and he
deserves it too." She clarified on cross-examination that she "realized how damaging
that could be for the children to feel like they're pulled between their parents." And
discussing her move, Amanda testified that she had decided to stay in the Pacific
Northwest so the children could be closer to Brett.
Brett points to conflicting evidence in the record about the availability of
employment inJuneauandAmanda's interferencewithhis relationshipwith thechildren.
21 The
But the existence of conflicting evidence is not enough to establish clear error.
record does not leave us convinced that the superior court made a clear and definite
mistake when it found that Amanda's move to Roseburg was legitimate.
2. The finding that factor one favored neither parent was not
clearly erroneous.
The first best interests factor requires the court to consider "the physical,
21 See Silvan v. Alcina , 105 P.3d 117, 122 (Alaska 2005) ("When the superior
court is faced with conflicting evidence, we do not re-weigh it. 'It is the job of the trial
court, not the appellate court, to judge the credibility of the witnesses and to weigh
conflicting evidence.' " (quoting Native Alaskan Reclamation & Pest Control, Inc. v.
United Bank Alaska , 685 P.2d 1211, 1215 (Alaska 1984))).
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----------------------- Page 12-----------------------
22
emotional, mental, religious, and social needs of the child." The superior court found
that this factor favored neither parent. It explained that Amanda had proven her ability
to provide for the children's needs by being a successful stay-at-home mother for eight
years, that Brett had committed himself to working less and spending more time with the
children, that the children had no special needs, and that Marie's needs - presumably
referring to her IEP and eye condition - could be met in Roseburg.
The court's findings have support in the record. It was undisputed that
Amanda had been the children's primary caregiver from 2010 to at least 2016, when the
parties separated, and Brett does not argue that she was unable to provide for the
23 The superior court's finding that Amanda would
children's needs during that period.
be able to meet the children's needs based on her history as their primary caregiver was
not clearly erroneous. And at trial Brett did not dispute testimony that Marie would be
able to receive appropriate educational and medical services in Roseburg. Brett points
to evidence that Amanda had not yet arranged for permanent housing in Roseburg, but
this is not enough to demonstrate that the superior court made a clear and definite
mistake.24 It was not clear error for the court to find that factor one favored neither
parent.
22 AS 25.24.150(c)(1).
23 Brett does argue that Amanda will be less able to provide for the children
moving forward because of her plans to enter the workforce, but this argument is
unpersuasive. Amanda clarified that she would only work part time to make time for the
children's needs.
24 See Silvan, 105 P.3d at 122 (upholding trial court's finding despite
conflicting evidence).
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3. The finding that factor five favored Amanda was not clearly
erroneous.
Brett argues that the superior court gave too much weight to Amanda's
primary caregiver status when it found that Amanda would provide the children with
greater emotional stability. Brett also contends that the court misunderstood the amount
of time he spent with the children while he and Amanda lived together, that Amanda was
no longer the children's primary caregiver at the time of trial, and that he has been very
involved in the children's lives.
It was undisputed that the couple structured their marriage so that Amanda
was the children's primary caregiver. Brett testified that he worked extra hours as a part
of this arrangement to make enough to support the family, and that by 2014 he was
regularly working 80 to 100 hour weeks. He said that he was not able to see the children
as much as he would have liked during this period but he made sure he was home for
dinner with the children and to put them to bed. Amanda testified that Brett was often
disengaged and focused on work even when he was with the children.
The superior court acknowledged that Brett's parenting time had increased
since the separation. But it reasoned that Amanda had been able to build a deeper
relationship with the children because of her time spent as their primary caregiver during
25 Moreover
their formative years. We have previously approved of similar reasoning.
Amanda's detailed testimony describingthechildren's personalities and howthedivorce
had affected them supported the court's finding that she would provide them with
significant emotional stability. And the superior court found that Amanda was "willing
25 Odom v. Odom , 141 P.3d 324, 331 (Alaska 2006) (explaining that the
"superior court may properly conclude that awarding custody to the primary caregiver
will establish greater emotional stability for the purposes of AS 25.24.150(c)(5)" (citing
veselsky v. veselsky , 113 P.3d 629, 635 (Alaska 2005))).
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----------------------- Page 14-----------------------
to work part-time" in Roseburg to maintain emotional continuity for the children; this
also had support in the record.
The superior court noted that this was "a very difficult . . . decision" and
acknowledged Brett's strength as a father. But it ultimately determined that Amanda
provided greater emotional stability to the children and that this outweighed the
geographical stability they would enjoy if they stayed with Brett in Juneau. Even if the
evidence may have supported a finding that factor five favored Brett, this would not
26 Its conclusion is supported by
provide grounds to reverse the superior court's finding.
the record and our precedent. This finding is not clearly erroneous.
4. The finding that factor six favored neither parent was not
clearly erroneous.
The sixth best interests factor requires the trial court to consider "the
willingness and ability of each parent to facilitate and encourage a close and continuing
relationship between the other parent and the child."27
The superior court found that this
factor favored neither parent, relying mainly on their courtroom demeanor. The court
recognized that Amanda had interfered with Brett's custody in the past, but explained
that her testimony showed regret for those actions and intent not to repeat them.
Brett argues that this was clear error, but the record supports the court's
conclusion. We have explained that "[t]rial judges are in the best position to make
determinations about the demeanor of the parties and how their relationships with each
26 See Blanton v. Yourkowski, 180 P.3d 948, 955 n.31 (Alaska 2008)
("Although awarding custody to [the mother] based on her strong emotional bond with
[her daughter] may have also been a reasonable result, we cannot substitute our judgment
for that of the superior court."); see also McDanold v. McDanold , 718 P.2d 467, 471
(Alaska 1986) (explaining that "[i]n a case as close as this one, the trial court must be
given some latitude in making a decision").
27 AS 25.24.150(c)(6).
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28
other will impact the child." In light of this, we cannot conclude that the superior
court's determination was clearly erroneous.
5. The finding that Brett had enough money to afford frequent
visitation was not clearly erroneous.
Alaska Statute 25.24.150(c)(9) allows the trial court to consider "other
factors that [it] considers pertinent." The superior court did so here, finding that "these
folks are financially able to deal with issues of travel, issues of short and long stays, short
and long terms of visitation" and indicating that its visitation order would allow for
Brett's time with the children to be "liberally distributed." The court again described the
couple's arrangement, whereby Amanda cared for the children while Brett worked long
hours to support them, and explained that "because [Brett] has worked so hard, . . .
whatever the location of the children and whatever . . . needs the parties need to
coordinate in terms of visitation, you have the funds to be able to do that."
Brett argues that the court should not have considered his ability to visit the
children frequently but does not provide any explanation for why it was improper to do
so. His high income was undisputed at trial, and the court reasonably took it into
account.
C. The Failure to Consider Appointment Of A Guardian Ad Litem Was
Not Plain Error.
AlaskaStatute25.24.310(c) requirestheappointment ofaguardian ad litem
(GAL) when "in the opinion of the court, representation of the child's best interests, to
be distinguished from preferences, would serve the welfare of the child." The statute
provides that the court may appoint a GAL "upon the motion of either party or upon its
28 Silvan, 105 P.3d at 122 (Alaska 2005).
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----------------------- Page 16-----------------------
29
own motion." Neither party requested that a GAL be appointed in this case. The
superior court did not appoint one on its own initiative and made no findings on the
record about whether or not a GAL was necessary. 30
Brett argues that the superior court violated AS 25.24.310(c) by failing to
consider the necessity of a GAL. Since Brett did not raise the issue before the superior
court, we review it under a plain error standard and will reverse only "where an obvious
31
mistake has been made which creates a high likelihood that injustice has resulted."
Alaska Civil Rule 90.7(a) explains the circumstances in which a GAL may
be appointed. It states that separate representation of a child's interests may be necessary
"when the [GAL] may be expected to present evidence not otherwise likely to be
available or presented, or the proceeding is unusually complex."32 The commentary to
the rule explains that "[c]ourts should not routinely appoint [GALs] in custody . . .
proceedings. In most instances, the child's best interests are adequately protected and
33
presented by the parties."
Brett fails to establish that the circumstances described in the rule existed
in this case. He argues that a GAL could have presented evidence about "whether
schooling and therapists areavailablefor thechildrenin Oregon"and about"[Amanda]'s
29 AS 25.24.310(c).
30 See id . ("Upon notification [that custody is at issue in a divorce], the court
shall determine if a child's best interests need representation or if a minor or other child
needs other services and shall make a finding on the record before trial.").
31 Small v. Sayre, 384 P.3d 785, 788 (Alaska 2016) (quoting D.J. v. P.C.,
36 P.3d 663, 668 (Alaska 2001)).
32 Alaska R. Civ. P. 90.7(a).
33 Alaska R. Civ. P. 90.7(a) cmt.
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unsettled housing situation." But Brett does not explain why the appointment of a GAL
was necessary to develop this evidence. Indeed, Amanda was able to present evidence
on these issues, and Brett had the opportunity to challenge her testimony on cross-
examination but chose not to.
There is no indication fromthe record that this case was unusually complex
or that the parents would be unable to adequately present or protect the children's best
interests. We therefore conclude that it was not plain error for the superior court to
neither consider the appointment of a GAL nor appoint one on its own motion.
D. The Superior Court Did Not Abuse Its Discretion By Denying Brett's
Motion For Reconsideration.
Alaska Civil Rule 77(k) allows a party to move for reconsideration of an
issue when it believes that the trial court, among other things, "has overlooked or
misconceived some material fact or proposition of law."34 Brett appeals the superior
court's denial of his motion for reconsideration. We review for abuse of discretion.35
In his motion for reconsideration, Brett largely challenged the superior
court's analysis of the best interests factors and made several factual allegations that he
had not presented at trial. In denying the motion, the superior court explained that it
would not consider evidence raised for the first time in a motion for reconsideration and
that Brett "should have raised the points during his case-in-chief."
Brett argues that this was an abuse of discretion. But we have made it clear
36
that "courts will ordinarily not consider new evidence in a motion for reconsideration."
34 Alaska R. Civ. P. 77(k)(1)(ii).
35 See Norris v. Norris, 345 P.3d 924, 928 (Alaska 2015); Brown v. State,
563 P.2d 275, 279 (Alaska 1977).
36 Hodari v. State, Dep't of Corr., 407 P.3d 468, 472 (Alaska 2017); see also,
(continued...)
-17- 7390
----------------------- Page 18-----------------------
While there are circumstances in which a court may consider evidence presented for the
37 38
first time in such a motion,
it is not an abuse of discretion to refuse to do so.
Brett also argues that the language the court used in its order denying his
motion demonstrates that the court misconstrued evidence and overlooked several
material facts. Having reviewed the record we cannot agree. As discussed above, the
court's custody decision is well supported by the record. It was not an abuse of
discretion to deny Brett's motion for reconsideration.
Iv. CONCLUSION
The superior court's decision is AFFIRMED.
36 (...continued)
e.g., Bachner Co., v. Weed, 315 P.3d 1184, 1195 (Alaska 2013) ("Generally, a motion
for reconsideration cannot be based on new information or arguments."); Neal & Co. v.
Ass'n of vill. Council Presidents Reg'l Hous. Auth. , 895 P.2d 497, 506 (Alaska 1995)
("We refuse to allow a motion for reconsideration to be used as a means to seek an
extension of time for the presentation of additional evidence on the merits of the claim.").
37 See Mattfield v. Mattfield, 133 P.3d 667, 675 (Alaska 2006) (affirming
consideration ofnewevidenceinmotion for reconsideration when trialcourthadensured
that opposing party had opportunity to controvert new evidence).
38 See Engstrom v. Engstrom, 350 P.3d 766, 769 n.12 (Alaska 2015).
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