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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Alisa Burns v. John Everett Burns (6/26/2020) sp-7462

Alisa Burns v. John Everett Burns (6/26/2020) sp-7462

           Notice:   This opinion is subject to correction before publication in the PACIFIC  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                                         



ALISA  BURNS,                                                      )  

                                                                   )    Supreme  Court  No.  S-17394  

                                 Appellant,                        )  

                                                                                                                                    

                                                                   )    Superior Court No. 3AN-17-06683 CI  

           v.                                                      )  

                                                                                             

                                                                   )    O P I N I O N  

                                

JOHN EVERETT BURNS,                                                )  

                                                                                                           

                                                                   )    No. 7462 - June 26, 2020  

                                 Appellee.                         )  

                                                                   )  



                                                                                                                 

                                             

                      Appeal from the Superior Court of the State of Alaska, Third  

                                                                                               

                      Judicial District, Anchorage, Dani Crosby, Judge.  



                                                                                                                    

                      Appearances:                 John   J.   Sherman,   Mendel   Colbert   &  

                                                                                                               

                      Associates, Inc., Anchorage, for Appellant.  John E. Burns,  

                                                       

                      pro se, Anchorage, Appellee.  



                                                                                                          

                      Before:  Bolger, Chief Justice, Winfree, Stowers, Maassen,  

                                            

                      and Carney, Justices.  



                                                    

                      BOLGER, Chief Justice.  



I.         INTRODUCTION  



                                                                                                                                                 

                      A mother appeals a final order modifying custody of her three children.  



                                                                                                                                        

She argues that the modification was to punish her and was not based on the best  



                                                                                                                                         

interests of the children.  She asserts that the superior court clearly erred in finding that  



                                                                                                                                                 

she misrepresented information to third parties, including her son's medical providers.  



                                                                                                                                          

She additionally argues that she was denied due process because the superior court did  


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not give her expert the opportunity to defend his methodology once the court determined  



                                                                                                                               

that his psychological evaluation was outside the scope of its expectations.  And she  



                                                                                                                                 

asserts that the superior court erred in assigning no weight to her expert's evaluation in  



                                                           

making its credibility determinations.  



                                                                                                                               

                    We conclude that the modification was not made to punish the mother. The  



                                                                                                                               

superior court based its underlying findings on the children's best interests.  And the  



                                                                                                                  

superior court did not clearly err in finding that the mother misrepresented information  



                                 

to third parties.  We also conclude the mother was provided a meaningful opportunity  



                                                                                                                                 

to be heard.  It was within the superior court's discretion to decide how much weight to  



                                                                                                                              

assign  the  psychological  evaluations  in  making  its  credibility  determinations.                                        We  



                                                                                                

therefore affirm the superior court's order modifying custody.  



                                                              

II.       FACTS AND PROCEEDINGS  



                                                                                                                               

                    Alisa and John (Jay) Burns married in California in 2006.  Alisa and Jay  



                                                                                                                           

had three children during their marriage:  a daughter born in 2009, a son born in 2010,  



                                                                                                                            

and a daughter born in 2014. Alisa and Jay separated in 2017 and divorced in early 2018  



                        

in Anchorage.  



                                                                                                                             

                    Thesuperior court held an interimcustody hearing in September 2017, after  



                                                                                                                           

Alisa went on vacation with the children to New York, rented an apartment while there,  



                                                                                                                               

and requested interim custody on an expedited basis so that the children could start the  



                                                                                                                               

school year in New York.  The court denied Alisa's request for interim custody, and the  



                                                                                                                                  

children returned to Anchorage until a final custody hearing in December 2017.  In a  



                                                                                                                 

"very close custody case," the court awarded joint legal custody to Alisa and Jay, but  



                                                                                                                             

gave Alisa primary physical custody and permission to move with the children to New  



                                                                                                                              

York. The court ordered that Jay have visitation over summers and certain holidays and  



                                                                                                                     

that he "have frequent, open, and age-appropriate telephone, texting, and Facetime  



                                          

contact with the children."  



                                                               -2-                                                         7462
  


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                    In April 2018 Jay filed a motion requesting that the court vacate its findings  



                                                                                                                     

of fact and conclusions of law after Jay and Alisa's son was hospitalized for behavioral  



                                                                                                                                   

issues in New York.   The court exercised its discretion and deemed Jay's motion a  



                                                                                                                          

motion for custody modification; however, it required Jay to file a supplemental motion  



                                                                                                                                

reframing the argument under the proper modification standard.  Alisa was given the  



                                                    

opportunity to file an opposition.  



                                                                                                                                      

          A.        TheHealthDiscoveryProtectiveOrderAndPsychologicalEvaluations  



                                                                                                                                 

                    The  mental  health  and  credibility  of  the  parents  became  a  point  of  



                                                                                                                         

contention,  as  both  Alisa  and  Jay  made  allegations  about  why  mental  health,  



                                                                                                                                

manipulative behaviors, and untruthfulness made the other parent unfit to care for the  



                                                                                                                           

children.        Alisa  requested,  and  was  granted,  a  protective  order  barring  Jay  "from  



                                                                                                                                  

propounding discovery relating to [Alisa's] past mental or physical health."  Instead, in  



                                                                                                                

the protective order, the superior court ordered that each party "submit to psychological  



                                                                                                                               

evaluationfor thepurposeofidentifyingany current psychological conditions/issues that  



                                                                                                                         

could affect the parent's capacity to care for the children."  (Emphasis added.)  



                                                                                                                          

                    Duringastatus hearing, Alisaexplainedthat shewas having troublefinding  



                                                                                                                               

a psychologist who would accept her health insurance to administer the evaluation, that  



                                                                                                                     

she was not entirely clear on what the court would like evaluated, and that the evaluation  



                                                                                                                               

might not be complete prior to the custody modification hearing. The court clarified that  



                                                                                                                               

it  was  interested  in  an  evaluation  of  her  mental  health,  particularly  addressing  the  



                                                                                                       

allegations that she suffered from borderline personality disorder, depression, or post- 



                                                                                                                               

traumatic stress disorder: "Because the mental health of the children, particularly [the  



                                                                

son] actually, is really critical here . . . ."  



                                                                                                                                

                    The court indicated that if Alisa could not obtain an evaluation before the  



                                                                                                                             

September hearing date, then both evaluations could be submitted to the court post- 



                                                                                                                              

hearing  without  testimony  or  opportunities  for  cross-examination.                                     The  court  also  



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----------------------- Page 4-----------------------

suggested  cross-examining  the  evaluators  telephonically  after  the  psychological  

                                                                                                              



evaluations were completed.  

                                              



                    By the final status hearing it was apparent that Alisa's evaluation would not  

                                                                                                                                



be finished in time for the custody modification hearing.  The court reasoned that in  

                                                                                                                                 



fairness both evaluations should be handled in the same manner, and Alisa and Jay  

                                                                                                                               



agreed to submit their evaluations post-hearing for the court to consider without further  

                                                                                                                           



testimony  or  cross-examination.                      Alisa  submitted  her  psychological  evaluation  in  

                                                                                                                                 



October 2018.  The evaluation "was based on a review of materials provided by both  

                                                                                                                              



parties' counsel, an interview with Alisa as well as one of her therapists, a series of  

                                                                                                                                 



psychometric tests, and a home visit."  

                                                  



          B.        Alisa's New York Petition To Modify Custody Or Visitation  

                                                                                                       



                    While  these  proceedings  were  underway  in  Alaska,  Alisa  had  filed  a  

                                                                                                                                  



petition to modify custody or visitation with the New York Family Court in April 2018.  

                                                                                                                                      



Alisa   requested   a   temporary,   emergency   protective   order,   alleging   that   Jay's  

                                                                                                                           



"manipulations"  were  "exacerbating  the  children's  serious  mental  health  issues,"  

                                                                                                                        



particularly their son's.  This temporary protective order was granted.  The Alaska and  

                                                                                                                               



New York courts discussed Alisa's petition and the protective order, and decided on  

                                                                                                                                 



"truncated summer visitation" between Jay and the children. Jay's Skype and telephone  

                                                                                                                      



communication with the children was also stopped for approximately two months as a  

                                                                                                                               



result of this protective order.  

                                               



          C.        The Custody Modification Hearing  

                                                                 



                    The Alaska superior court held a two-day custody modification hearing in  

                                                                                                                                  



September  2018.              As  noted  by  the  court,  Jay  and  Alisa  "present[ed]  diametrically  

                                                                                                                



opposed testimony" on many topics. They provided conflicting testimony on the impact  

                                                                                                                           



of  the  move  on  their  younger  daughter's  potty  training  and  their  older  daughter's  

                                                                                                                    



                                                                -4-                                                         7462
  


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adjustment to her new school.  The bulk of the testimony, however, focused on their  



                                      

son's mental health and hospitalization.  



                                                                                                                          

                    In Jay's testimony about his son's mental health, Jay noted that during  



                                                                                                                            

summer visitation, his son demonstrated "separation anxiety"behaviorsthathehad never  



                                                                                                                      

witnessed before the New York move.  Jay cited several examples of Alisa allegedly  



                                                                                                                             

providing inaccurateinformationto emergencyroompersonnel and doctorstreating their  



                                                                                                                        

son; this included providing inaccurate information about the family medical history,  



                                                                                                                                

misrepresenting their son's behavioral history,  and  mischaracterizing the reason he  



                                                                                                                               

repeated kindergarten.  Jay asserted that because Alisa "l[ied] to doctors," their son did  



                                                                                                                               

notreceiveappropriatementalhealth treatment and was prescribedmedications "he's not  



                                

supposed to be on."  



                                                                                                           

                    Jay  further  testified  that  Alisa  provided  low-quality  communication  



                                                                                                                        

opportunities between himand the children during Skype and telephone calls, in contrast  



                                                                                                                       

to the "no distractions" communication time he provided for Alisa during his summer  



                                                                                                                               

visitation. Jay stated that there were "[c]onstant distractions" during the Skype calls and  



                                                                                                                               

that Alisa gave the children snacks and toys as if she were "trying to sabotage the  



                                                                                                                                

communication." Jay alleged Alisa provided inaccurate descriptions of various calls he  



                                                                                                                               

had with the children to get the protective order in New York and separate him from the  



               

children.  



                                                                                                                                     

                    Alisa testified on the second day of the custody modification hearing.  



                                                                                               

When asked about her son's mental health, she described his "anxiety and aggressive  



                                                                                                                          

behavior  towards  his  sisters."                  Alisa  refuted  the  notion  that  his  behavioral  issues  



                                                                                                                             

developed after the New York move. Instead, she testified that she had two emails from  



                                                                                                                                

her son's former teacher in Alaska, which were entered as an exhibit, that expressed his  



                                                                                                                       

teacher's concern that her son was "breaking things and throwing things" and "chasing  



                                                                                                                     

students in the classroom."  When questioned by the court about her son's behaviors  



                                                               -5-                                                         7462
  


----------------------- Page 6-----------------------

                                                                                                                     

prior to the hospitalization, Alisa described him making a comment about self-harm,  



                                                                                                                                      

trying to grab a knife from her hand while she was cooking, and threatening to hurt her.  



                                                                                                                                

                    Alisa stated that she "first heard from [her son] about the stress of the  



                                                                                                                  

conversations with his dad" when she put her son in therapy to cope with the stress of  



                                                                

the divorce and move.  She testified that Jay asked for privacy during the calls, so she  



                                                                                                                            

initially provided the children with headphones in their bedrooms.  However, she stated  



                                                                                                                                  

that she began noticing a pattern of her son "coming out of the call sometimes crying or  



                                                                                                                             

really agitated."  She characterized Jay as pressuring the children to use Skype.  Alisa  



                                                                                                                          

identified Jay's calls with her son as a "stressor[]," and she alleged that he "shut down"  



                                                                                                                            

and was "more aggressive" after the two weeks of summer visitation with Jay.  Alisa  



                                                                                                                           

testified that Jay focused on "negative thing[s]" and said "things that they're too young  



                                                                                

to be hearing at all" about the divorce and custody.  



                                                                                                                   

                    When questioned about inconsistencies in the medical records surrounding  



                                                                                                                          

her son's hospitalization, Alisa explained that what she told medical personnel did not  



                                                                                                                             

always  match  what  was  transcribed  in  the  records  and  that  any  inaccuracies  were  



                       

unintentional.  



                                                                                                                             

          D.	       The  Superior  Court's  Findings  Of  Fact  And  Conclusions  Of  Law  

                                                                             

                    Supporting Custody Modification  



                                                                                                  

                    The superior court issued written findings of fact and conclusions of law  



                                                                                                                       

in March 2019. The court explained it "consider[ed] primarily the needs of the children,  



                                                                                                                                 

the parents' respective abilities to meet the children's needs, and [Alisa's] ability to  



                                                                                                                            

foster a relationship between the children and [Jay]."  The court noted that its initial  



                                                                                                 

December 2017 custody determination had been "a very close custody case," and that  



                                                                    

in granting Alisa primary physical custody to move with the children to New York "it  



                                                                                                                               

emphasized that it was going to be very important that [Alisa] support an open and  



                                                                -6-	                                                        7462
  


----------------------- Page 7-----------------------

                                                                                                                            

loving       relationship          between         the    children        and      their     father,       consistent        with  



                                    

AS 25.24.150(c)(6)."  



                                                                                                                                  

                    In discussing the children's needs, the court found that since the move to  



                                                                                                                      

New York, the son "had begun having significant behavioral issues, including assaultive  



                                                                                                                               

behavior toward his mother and attempting to hurt himself." And it stated there was "no  



                                                                                                                              

dispute"  that  the  son  "has  experienced  mental  health  issues  in  New  York,"  was  



                                                                                                                 

hospitalized for a "substantial period," and "has generally been having a very difficult  



                                                                                                                    

time since moving to New York."  Therefore the court found that the son's "emotional  



                                                                                                                                

needs are particularly demanding and important at this time."  The court noted that the  



                                                                                                                                

younger daughter seemed "generally happy," and the older daughter "doesn't like the  



                                                                                                                            

limiting  nature  of  the  phone  calls"  with  Jay  following  issuance  of  the  New  York  



                                                                                                     

protective order and "doesn't seem to be adjusting terribly well."  



                                                                                                                      

                    The court examined how Alisa handled her son's mental health treatment  



                                                                                                                       

in  New  York.            The  court  found  that  Alisa  did  not  provide  complete  and  accurate  



                                                                                                                                  

information to the emergency room personnel and doctors treating her son.   And it  



                                                                                                                              

stated: "[I]n terms of the children's physical, emotional, mental and social needs as well  



                                                                                                                                 

as  the  capability  and  desire  of  each  parent  to  meet  those  needs,  as  set  out  in  



                                                                                                                             

AS      25.24.150,         (c)(1)      and      (2)    .   .   .   [Alisa's]        repeated        misinformation            and  



                                                                                                                                

miscommunications provided to third parties, including medical care providers, has the  



                                                                                                                         

potential to pose unacceptable risks to [her son]."  The court found that Jay "is capable  



                                                                                                                          

of caring for the children, including [his son's] unusual needs at this time, which weighs  



                                                                 

this factor slightly more in [Jay's] favor."  



                                                                                                                               

                    While  considering  Alisa's  ability  to  foster  a  relationship  between  the  



                                                                                                                         

children and Jay, the court found that a few days after Jay filed his first motion seeking  



                                               

a custody modification, Alisa filed a petition in New York seeking a family protective  



                                                                                                                           

order. The court noted that "though it was appropriate for [Alisa] to be allowed to access  



                                                                -7-                                                         7462
  


----------------------- Page 8-----------------------

                                                                                                                             

the New York courts for an emergency protective order, her representations to that court  



                                                                                                                                

should have been accurate."  In seeking the protective order, Alisa represented to the  



                                                                                                                        

New York court that Jay intimidated, manipulated, and emotionally abused the children  



                                                                                                                            

through their telephone and  Skype calls.   The court found that "the tenor of Jay's  



                                                                                                                                

communication with his children was loving,engaging,creativeand appropriate, and not  



                                                                                                                      

at all like the controlling, intimidating, or manipulative tenor which has been suggested  



                                                                                                                                  

by Alisa." The court also found that Alisa did not accurately represent what occurred in  



                                                                    

specific calls between Jay and the children.  



                                                                                                                     

                    The court explained the detrimental impact that the New York protective  



                                                                                                                          

order had on Jay's relationship with the children: "[B]ased in significant part" on Alisa's  



                                                                                                                               

misstatements, "Jay wasn't allowed to communicate with his children at all for two  



                                                                                                                        

months" and "only a truncated summer visitation between [Jay] and the parties' children  



                                                                                                                        

was permitted by the court."  The court concluded that "overall, [Alisa] made multiple  



                                                                                                                                   

misstatements, provided information that wasn't complete or was inaccurate, and in a  



                                                                                                                             

few instances simply not supported by the evidence or facts . . . that resulted in [Jay]  



                                                                                                                                 

having less access to his children, which this court considers to be very important."  As  



                                                                                                                                  

a result, the court had "great concerns about [Alisa's] ability on an ongoing basis to  



                                                                                                             

foster that open and loving relationship between the children and their father."  



                                                                                                                           

                    The court stated that it requested the psychological evaluations so it "could  



                                                                                                                                 

better determine if one party or both had issues affecting the children that needed to be  



                                                                                                                               

addressed."  The court reviewed the psychologist's report on Jay indicating that he was  



                                                                                                                            

suffering from "adjustment disorder," but it explained "[t]here was nothing in the report  



                                                                                                                             

saying that he suffered from any diagnosis that would cause this court to have great  



                                                                                                                               

concern." The court was "puzzled" by the psychologist's report on Alisa, explaining that  



                                                                                                                                

going "to her home to observe her with the children" was "unusual" and " 'outside the  



                                                                                                                               

box,' such that the court gave limited or no weight to that doctor's report."  In its oral  



                                                                -8-                                                         7462
  


----------------------- Page 9-----------------------

                                                                                                                               

findings, the court noted that it did not "take any negative implications . . . from the  



                                                                                                                            

report" on Alisa, and the court did not make any findings that Alisa was suffering from  



                                                                                                                              

a mental disorder.  The court was, however, concerned about Alisa's inability to "set  



aside her own interpretation" of Jay's behavior, which is "not consistent with reality,"  



                                                                                      

and questioned her ability to meet the children's needs.  



                                                                                                                       

                    The court granted Jay primary physical custody and noted that it "gave  



                                                                                                                      

serious consideration to placing legal custody solely in Jay" because of Alisa's "multiple  



                                                                                                                               

misrepresentations about the children to third parties, especially medical personnel," but  



                                                                                     

the court "hope[d] for better decisions going forward."  



                                                                                                                                     

          E.        The Superior Court's Denial Of Alisa's Motion For Reconsideration  



                                                                                                                             

                    Alisa filed a motion for reconsideration, arguing that the court should have  



                                                                                                                        

allowed her "evaluator to support or explain his evaluation."  Alisa alleged that "[w]ere  



                                                                                                                               

he given the opportunity, [Alisa's evaluating psychologist] could testify regarding his  



                                                                                                                              

process, his reasoning, and the basis for his conclusions." Alisa additionally argued that  



                                                                                                                               

the  superior  court  had  not  considered  any  recent  developments,  which  would  be  



                                                                                                                                     

appropriate given the "quickly progressing issues related to [their son's] mental health."  



                                                                                                                              

                    The   superior   court   issued   an   order   denying   Alisa's   motion   for  



                                                                                                                         

reconsideration.   First, the court noted that Alisa and Jay had stipulated that Alisa's  



                                                                                                                           

"psychological evaluation could be submitted post-hearing and that the court could  



                                                                                                              

consider it without taking testimony from the evaluator."  The court also acknowledged  



                                                                                                                              

that although it "did not place weight on [Alisa's] evaluation, it also did not find that  



                                                                                                                       

[Alisa] suffered from any particular mental disorder" and so "the evaluation is arguably  



                                                                                                                     

consistent with the court's decision."  Secondly, the court explained that its "decision  



                                                                                                                              

was substantially based on the court's finding that [Alisa] has not fostered an open and  



                                                                                                                                

loving relationship between [Jay] and the children - this finding cannot be affected by  



                                               

the passage of three months."  



                                                               -9-                                                         7462
  


----------------------- Page 10-----------------------

                        Alisa appeals.             



III.        STANDARDS OF REVIEW                  



                        "Trial courts have broad discretion in determining whether a proposed                                             



                                                                                                           1  

                                                                                                                                               

child-custody modification is in the child's best interests."                                                  The trial court's "broad  



                                                                                                                                                      

discretion extends to its determination whether, following an evidentiary hearing, the  



                                                                                                                                                

moving party has proven a substantial change in circumstances, meaning one that affects  



                                    2  

                                                                                                                                                   

the child's welfare."                   We "set aside the [trial] court's best interests determination only  



                                                                                                                                  

if the trial court abused its discretion or if the fact findings on which the determination  



                                                        3  

                                                           

is based are clearly erroneous." 



                                                                                                                                                        

                        When reviewing factual findings, we "conclude that a factual finding is  



                                                                                                                                                         

clearly 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 made; we may conclude a finding  



                                                                                                                                                         4  

                                                                                                                                                             

is clearly erroneous even if there is some evidence in the record to support the finding." 



We "give particular deference to those findings when . . . 'most of the trial evidence  

                                                                                                                                           

consists of oral testimony.' "5  

                                                  



            1           Rego  v.  Rego,  259  P.3d  447,  452  (Alaska  2011)  (citing  Ebertz  v.  Ebertz,  



 113  P.3d  643,  646  (Alaska  2005)).   



            2           Collier  v.  Harris,  377  P.3d  15,  20  (Alaska  2016)  (citing  Heather  W.  v.  Rudy  



R.,  274  P.3d  478,  482  (Alaska  2012)).  



            3           Rego, 259 P.3d at 452 (citing Ebertz, 113 P.3d at 646).  

                                                                                                                 



            4           Id.  

                               



            5           In re Adoption of A.F.M. , 15 P.3d 258, 262 (Alaska 2001) (quoting Silvers  

                                                                                                                                               

v. Silvers, 999 P.2d 786, 792-93 (Alaska 2000)).  

                                                                          



                                                                          -10-                                                                    7462
  


----------------------- Page 11-----------------------

                        "When determining the requirements of due process, we look to the test                                                      

enunciated by the United States Supreme Court in                                          Mathews v. Eldridge                  ."6  "Not every  



                                                                                                                                          7  "[T]he  

potential deprivation of protected interests results in a due process violation." 



crux of due process is having a meaningful opportunity to be heard and represent one's  

                                                                                                                                                 

interests."8  

                     



                                         

IV.	        DISCUSSION  



                                                                                                                                                   

                        Alisa raises multiple arguments on appeal. Her first argument is that it was  



                                                                                                                                                    

a denial of due process for the court to "disallow additional evidence to support" her  



                                                                                                                                                       

expert's psychological evaluation report. She additionally asserts that the court erred in  



                                                                                                                                                 

giving "limited to no weight" to the report in making its credibility determination. Alisa  



                                                                                                                                      

next       argues         that       the      court       modified            custody          to      punish         her      for      perceived  



                                                                                                                                          

misrepresentations, rather than advance the children's best interests. Her final argument  



                                                                                                                                             

is that the court clearly erred in finding (1) that she misrepresented facts to third parties,  



                                                                                                                                                    

including medical  personnel and the New York court, (2) that Jay's calls with the  



                                                                                                                                                  

children were largely loving and appropriate, and (3) that her description of Jay's calls  



                                                                                         

as manipulative and intimidating was inaccurate.  



                                                                                                                                                       

            A.	         The Superior Court Did Not Deprive Alisa Of Due Process, Nor Did It  

                                                                                                                                              

                        Err In Assigning Her Psychological Evaluation Little Weight.  



                                                                                                                                               

                        Alisa argues that the superior court erred by ordering the parties to obtain  



                                                                                                                                                    

psychological evaluations "to resolve critical disagreements between the parties" and  



                                                                                                                                            

then  "excluding"  her  report,  but  making  "substantial  findings  about  the  parties'  



            6          D.M.  v. State, Div. of Family & Youth Servs.                                   , 995 P.2d 205, 212 (Alaska           



2000) (citing           Mathews v. Eldridge                  , 424 U.S. 319 (1976)).                     



            7	         Id.  



            8          Dennis O. v. Stephanie O., 393 P.3d 401, 411 (Alaska 2017).  

                                                                                                                                      



                                                                         -11-	                                                                   7462
  


----------------------- Page 12-----------------------

credibility in apparent reliance on [Jay's] report."  Alisa asserts that the superior court                                                                                                                                  



should have allowed her to call her evaluating psychologist to support the methodology                                                                                                                                                                                                      



in his report before "excluding" her report.                                                                                                                            Alisa thus suggests that she was denied her                                                                                                                 



due   process   opportunity   to   be   heard   because   the   superior   court's   alleged   lack   of  



consideration   of   her   psychological   evaluation   report   created   an   "evidentiary   void"  



regarding her credibility in making the custody modification.                                                                                                                                                                                    



                                                    Alisa specifically argues that it was a denial of due process for the court to                                                                                                                                                                                                       



disallow   additional   evidence   to  support   her   psychological   evaluation,   and   that   by  



agreeing "to submit this evidence for the court's consideration in the form of the reports                                                                                                                                                                                                                           



only,"   she did not waive the "opportunity to present evidence contained in [her] own                                                                                                                                                                                                                                         



report."   Alisa asserts that "[b]y preventing [her] from providing a foundation for her                                                                                                                                                                                                                            



expert's testimony and instead ignoring the testimony entirely, the court interfered with                                                                                                                                                                                                                                      



Alisa's right to present evidence [that] the court had itself identified as necessary for the                                                                                                                                                                                                                                       



case."    As a result, Alisa argues, the superior court giving "no consideration" to her                                                                                                                                                                                                                                          



"required psychological evaluation cannot be dismissed as immaterial or harmless."                                                                                                                                                                                                                                                       

                                                                                                                                                                                                                                                                                                               9        "[W]e  

                                                    "Due process requires a 'meaningful' opportunity to be heard."                                                                                                                                                                                                   



typically identify due process violations in the custody context when a party has not had  

                                                                                                                                                                                                                                                                                                                                  

notice of the consequences ofaparticular hearing and lacked adequate time to prepare."10  

                                                                                                                                                                                                                                                                                                                                                    



"When a party already has received the 'minimum' due process required, the party's  

                                                                                                                                                                                                                                                                                                                    



arguments about  prejudice can be grounded in  the realities of the process actually  

                                                                                                                                                                                                                                                                                                               



                          9                        Anderson v. Alaska Hous. Fin. Corp.                                                                                                                     ,  462 P.3d 19, 30 (Alaska 2020)                                                                            



(quoting  Fuentes v. Shevin                                                                             , 407 U.S. 67, 80 (1972)).                                                                             



                          10                         Weathers v. Weathers, 425 P.3d 131, 138 (Alaska 2018).  

                                                                                                                                                                                                                                                        



                                                                                                                                                                -12-                                                                                                                                                         7462
  


----------------------- Page 13-----------------------

                                              11  

received and the outcome."                        A "party raising a due process objection must show that  

[the party] has suffered actual prejudice."                          12  



                      We note the superior court did not make any adverse findings about Alisa's  

                                                                                                                                     



mental health.  We further note that Alisa's various assertions that the superior court  

                                                                                                                        



excluded, gave no consideration to, or ignored her report are inaccurate.  The superior  

                                                                                                                                   



court's written findings demonstrate it clearly considered Alisa's evaluation report. The  

                                                                                                                                           



court stated it was confused by her evaluating psychologist's unorthodox methodology  

                                                                                                                          



of observing her in the home, and, accordingly, "gave limited or no weight to that  

                                                                                                                                          



doctor's report."  Contrary to her assertions, Alisa was not denied the opportunity to  

                                                                                                                                             



present the information contained in her own report.  

                                                                                         



                      Alisa's due process argument is predicated on the idea that the superior  

                                                                                                                                  



court made its credibility findings based largely on the psychological evaluations.  She  

                                                                                                                                          



asserts that the court relied on Jay's evaluation, but gave no weight to her evaluation  

                                                                                                                               



report, thereby unfairly favoring Jay in the credibility determinations. Alisa implies that  

                                                                                                                                           



her case was harmed because the lack of weight given to her report undermined her  

                                                                                                                                           



credibility and "a finding that a party lacks credibility infects all other findings."  

                                                                                                                                         



                      Alisa's argument appears to  assume that she suffered prejudice in  the  

                                                                                                                                           



credibility determination because her evaluator was not given an opportunity to defend  

                                                                                                                                     



his methodology.  The record, however, does not support this assumption.  Instead, the  

                                                                                                                                            



superior court explained that the reason it requested psychological evaluations was  

                                                                                                                                         



because of the parties' "widely divergent views of the facts."  But the superior court did  

                                                                                                                                           



not use Alisa's evaluation report to resolve the parents' conflicting narratives.  

                                                                                                                 



           11         Anderson , 462 P.3d at 33.                   



           12  

                                                                                                                                             

                      Regina C. v. Michael C., 440 P.3d 199, 205 (Alaska 2019) (alteration in  

                                                                                                                                            

original) (quoting Moody v. Royal Wolf Lodge, 339 P.3d 636, 643 (Alaska 2014)).  



                                                                     -13-                                                              7462
  


----------------------- Page 14-----------------------

                                        After consideringalloftheevidencepresented -testimony,                                                                                                                          transcripts and  



selected records of calls, and exhibits, including school reports, medical records, and                                                                                                                                                                 



Alisa's filings in New York - the superior court made findings that Alisa provided                                                                                                                                                      



inaccurate   and   incomplete   information   to   third   parties   on   multiple   occasions.     In  



explaining inaccuracies in the medical records, Alisa described it as "like a telephone                                                                                                                                             



game where I was giving them as much information as I could to try to be helpful . . . and                                                                                                                                                           



some of it, you know, was changed."                                                                             The superior court found that Alisa's explanation                                                                



for   inconsistencies in                                            the medical records was                                                        not "credible" and                                          was "difficult to                             



believe."   The court reasoned there were multiple inaccuracies in the medical records                                                                                                                                                       



because Alisa had made inaccurate statements, and it doubted that medical personnel got                                                                                                                                                                   



it so "wrong" as to change one statement into a completely different statement.                                                                                                                                                                 



                                        Trial   courts   receive   particular   deference   in   evaluating   oral   testimony  



because "[i]t is the function of the trial court, not of this court, to judge witnesses'                                                                                                                                           

                                                                                                                                                13       The superior court did not base its  

credibility and to weigh conflicting evidence."                                                                                                                                                                                                             



findings that Alisa made inaccurate representations on her suffering from a mental  

                                                                                                                                                                                                                                              



illness, so even if Alisa's evaluator had defended his methodology, this would not  

                                                                                                                                                                                                                                                         



address the inaccuracies in her son's medical records or the "difficult to believe" aspects  

                                                                                                                                                                                                                                              



of her testimony.  Rather, her multiple misrepresentations to third parties, including the  

                                                                                                                                                                                                                                                          



New York court and her son's medical providers, undermined her credibility because  

                                                                                                                                                                                                                                            



they indicated to the court that Alisa was unable to take an objective view of reality.  

                                                                                                                                                                                                                                                               



                                        The superior court did not err in assigning "limited or no weight" to Alisa's  

                                                                                                                                                                                                                                               



psychological evaluation report. And we conclude that the superior court did not deprive  

                                                                                                                                                                                                                                             



Alisa of a meaningful opportunity to be heard.  

                                                                                                                                              



                    13  

                                                                                                                                                                                                                                           

                                        In reAdoption of A.F.M., 15 P.3d 258, 262 (Alaska2001)(quoting Knutson  

                                                                                                                                                            

v. Knutson, 973 P.2d 596, 599-600 (Alaska 1999)).  



                                                                                                                            -14-                                                                                                                                 7462  


----------------------- Page 15-----------------------

                B.	             The Superior Court Made Findings Based On The Statutory Best                                                                                                      

                                Interests Of The Children Factors.                                                        



                                Alisa asserts that the superior court's decision to modify custody "focused                                                                              



on findings that Alisa had not accurately reported information to medical professionals                                                                                       



and New York Child Protective Services" and "that Alisa had not fostered a relationship                                                                                         



between the children and Jay," and was therefore intended to punish her.                                                                                                          Alisa cites   



                                                   14  

Hakas v. Bergenthal                              ,                                                                                                                                           

                                                        arguing that the children's best interests, not a desire to reward  



                                                                                                                                               

or punish a parent, should guide the custody determination.  



                                                                                                                                                                                         

                                The  record  supports  that  the  superior  court  awarded  primary  physical  



                                                                                                                                                                                                         

custody to Jay because three of the best interests factors that it identified as important in  



                                                                                                                                                                                                         

this case weighed in his favor.  Given that their son's hospitalization was the change in  



                                                                                                                                                                                            

circumstances prompting thecustody modificationhearing, thecourt reasonablydevoted  



                                                                                                                                                                                                   

considerable time to discussing their son's mental health needs and to assessing how  



                                                                                                                                                                                                          

capable each parent was of meeting those needs.  The court also explained that when it  



                                                                                                                                                                                                  

originally granted Alisa primary physical custody and permission to move to New York  



                                                                                                                                                                                             

with the children, it had "emphasized that it was going to be very important that [Alisa]  



                                                                                                                                                                                      

support an open and loving relationship between the children and their father, consistent  



                                                                                                                                                                                                        

with AS 25.24.150(c)(6)."  The court thus clearly identified which factors it found to be  



                                                                                                                                                                                                    

the most important and why those factors were particularly relevant to the children's best  



interests.  



                                                                                                                                                                

                                Furthermore, in discussing its concerns about Alisa's misrepresentations,  



                                                                                                                                                                                                    

the superior court explained how these misrepresentations impacted the children's best  



                                                                                                                                                                                                    

interests.  The findings regarding Alisa's misrepresentations can be grouped into two  



                                                                                                                                                                                            

overarching  categories.                                      First,  the  court  made  multiple  findings  about  how Alisa's  



                14  

                                                                                                                           

                                843 P.2d 642, 644 n.3 (Alaska 1992).  



                                                                                                  -15-                                                                                                    7462  


----------------------- Page 16-----------------------

                                                                                                                    

misrepresentations interfered with the children's relationship with Jay by preventing  



                                                                                                                              

contact  for  several  months  and  then  truncating  his  summer  visitation,  calling  into  



                                                                                                                           

question Alisa's ability to  foster a relationship between Jay and the children going  



                                                                                                                    

forward.  Secondly, the court made findings that Alisa made inaccurate and incomplete  



                                                                                                                                

statements to her son's medical providers, including emergency room personnel and her  



                                                                                                                           

son's treating  doctor,  and  it explained  that providing  inaccurate  information  posed  



                                                                                                                                      

"unacceptable risks" that her son would not receive appropriate mental health treatment.  



                                                                                                                           

The court found that Jay "is capable of caring for the children, including [his son's]  



                                                                                               

unusual needs at this time," weighing this factor in his favor.  



                                                                                                                               

                    We conclude that the superior court made clear findings based on the  



                                                                                                                                

statutory best interests factors.  The record does not support Alisa's contention that the  



                                                                         

superior court modified custody to punish her.  



                                                                                                                                    

          C.        The Superior Court's Findings Of Fact Are Not Clearly Erroneous.  



                                                                                                                               

                    Alisaargues that thesuperior courtclearly erred in determining that shewas  



                                                                                                    

"not credible based on an exhibit never offered or admitted into evidence, as well as a  



                                                                                                                              

misinterpretation  of  how  [her]  statements  compared  to  transcripts,  testimony,  and  



                            

documents in the record."  Alisa argues that the superior court clearly erred in finding  



                                                                                                                               

that the overall tenor of Jay's calls with the children was "loving, engaging, creative and  



                                                                                                           

appropriate," rather than "controlling, intimidating or manipulative."  



                                                                                                                                

                    The superior court not only reviewed the transcripts of Jay's calls with the  



                                                                                                                                 

children, but also listened to recordings of many of the conversations.   Based on its  



                                                                                                                         

extensive review of the calls, the superior court found that Alisa misrepresented specific  



                                                                                                                               

conversations  between  Jay  and  the  children,  as  well  as  the  overall  tenor  of  the  



                                                                                                                                

conversations. As noted by the superior court, there were a few "outlier[]" calls, but the  



                                                                                                                               

superior court's assessment of the general nature and tone of the calls between Jay and  



                                                          

the children is not clearly erroneous.  



                                                               -16-                                                         7462
  


----------------------- Page 17-----------------------

                                            Alisa   also   argues   that   the   superior   court   erroneously   found   that   she  



"misrepresented" information to medical providers because she described her son as                                                                                                                                                                                                  



"careless, impulsive with bad boundaries, and struggl[ing] with rules and limits."                                                                                                                                                                                           She  



asserts that the superior court should have acknowledged Exhibit 30, containing two                                                                                                                                                      



emails   from her                                       son's   teacher   in   Alaska,   which   indicated   that   her   son   was   having  



behavioral issues at his school in Alaska during the divorce.                                                                                                                                           



                                            Alisa's argument, however,                                                                glosses over thenuancesofthesuperior court's                                                                                   



findings.   The court found that "[her son] generally didn't have a history of those sorts                                                                                                                                                                                  



of behaviors, and that [Alisa] didn't present the whole picture to the medical providers."                                                                                                                                                                                                     



Although the two emails from his former teacher may suggest that her son had a few                                                                                                                                                                                         



behavioral issues during his final months in Alaska, the superior court also considered                                                                                                                                                                 



school records from New York that indicated her son "lights up any room" and was "a                                                                                                                                                                                                 



pleasure to have in class."                                                           The fact that the superior court did not credit the emails over                                                                                                                        



more recent school records does not leave "us with a definite and firm conviction that a                                                                                                                                                                                                



mistake has been made" by the court in characterizing her son's general behavioral                                                                                                                                                                     

                         15   Therefore the superior court did not clearly err in its finding that Alisa did not  

history.                                                                                                                                                                                                                                                                         



"present the whole picture to the medical providers."  

                                                                                                                                                                               



                                            Alisa argues that Exhibit 21 - an exhibit that was never admitted into  

                                                                                                                                                                                                                                                                              



evidence - should not have been relied on by the superior court in making its findings.  

                                                                                                                                                                                                                                                                                               



Exhibit 21 is a document that Jay requested from the New York Office of Children and  

                                                                                                                                                                                                                                                                               



Family Services; this document contains an "Intake Narrative" from an unidentified  

                                                                                                                                                                                                                                                   



caller alleging that Jay "intimidates, interrogates, and grills" the children via Skype calls.  

                                                                                                                                                                                                                                                                                               



Jay, and later the superior court, attributed these statements to Alisa.  

                                                                                                                                                                                                                                  



                      15  

                                                                                                                                                                                                                                                                    

                                           Rego v. Rego, 259 P.3d 447, 452 (Alaska 2011) (citing Ebertz v. Ebertz,  

                                                                                          

 113 P.3d 643, 646 (Alaska 2005)).  



                                                                                                                                       -17-                                                                                                                                              7462  


----------------------- Page 18-----------------------

                                                                                                                                

                    Alisa is correct that the superior court improperly relied on Exhibit 21 for  



                                                                                                                            

the finding that she inaccurately reported that Jay interrogated the children daily about  



                                                                                                                                 

what Alisa was doing.  This error, however, was harmless.  The court also relied on  



                                                                                                                                

Exhibit I, a document prepared and filed by Alisa to obtain a protective order from the  



                                                                                                                     

NewYorkcourt, to makemultipleother findingsregarding Alisa's inaccurateallegations  



                                                                                                                                

about the calls between Jay and the children.   In Exhibit I Alisa states that Jay "is  



                                                                                                                                      

manipulating, harassing, and controlling the children . . . via Skype on a daily basis."  



                                                                                                                             

This exhibit supports the same finding regarding Alisa's mischaracterization of Jay's  



                                                       

communications with the children.  



                                                                                                                                

                    Alisa additionally argues that the superior court's finding regarding her  



                                                                                                                             

"false characterization" to the New York court that her summer 2017 move to New York  



                                                                                                                               

was with the superior court's permission was clearly erroneous. She asserts that she was  



                                                                                                                            

simply presenting her "lay understanding of this process," and the superior court found  



                                                                                                                               

her statements inaccurate because she "did not use a term of art."  Furthermore, she  



                                                                                                                       

suggests even if an inaccurate statement had been made, "it is unclear how this statement  



                                                                                                                            

could possibly affect . . . any determination by the New York Court that protective action  



                                                                   

was needed regarding the Burns children."  



                                                                                                                                   

                    The superior court noted that Alisa had been granted permission to take a  



                                                                                                                              

vacation to New York, but explained she moved for an order allowing her to stay with  



                                                                                                                                 

the children in New York only after she had already gone to New York and leased an  



                                                                                                                     

apartment.   The superior court found her testimony that she believed she accurately  



                                                                                                                       

characterized thesequenceofevents "unconvincing,"particularlybecause"theaftermath  



                                                                                                                           

of that move made it very clear it hadn't been approved by this court at all."  The record  



                                                                                                                               

indicates that Alisa's statements did not just fail to use the appropriate term of art:  She  



                                                                                   

mischaracterized the timeline of events regarding the move to New York.  Finally, we  



                                                                                                                      

note the superior court did not find that this statement impacted the New York protective  



                                                               -18-                                                         7462
  


----------------------- Page 19-----------------------

action determination, but rather this finding is part of a larger pattern of inaccurate                                                                                                                                                                                                                                                                 



statements made by Alisa that are relevant to her credibility.                                                                                                                                                                                                                 The superior court did not                                                                               



clearly err in its findings that Alisa falsely characterized to the New York court her move                                                                                                                                                                                                                                                                                   



                                                                                                                                                                                                                                                                                                                                                                                              

to the area and that her explanation of this false characterization was unconvincing.  



                                                            Based on our review of the entire record, the superior court did not clearly                                                                                                                                                                                                                                



err in its findings of fact.                                                                                      



V.                             CONCLUSION  



                                                            We AFFIRM the superior court's custody modification order.                                                                                                                                                                                                                                  



                                                                                                                                                                                           -19-                                                                                                                                                                                  7462
  

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