Memorandum decisions of this court do not create legal precedent. A party wishing to cite such a decision in a brief or at oral argument should review Alaska Appellate Rule 214(d).
MEMORANDUM OPINION AND JUDGMENT
A couple married in Alaska in August 2012, after which they moved to Texas where their child was born while the father was out of state for military training. The father visited the mother and the child for Christmas week in 2012, and in January 2013 the mother took the child to Alaska, where she decided to stay and file for divorce. The divorce was granted in August 2013 and the mother was awarded primary custody, with the father being awarded liberal visitation rights. The father was subsequently deployed, and in March 2014 he received limited leave and traveled to Alaska for his two weeks of overnight visitation with the child. The mother, who had received notice of his planned visit in January, attempted to frustrate visitation by failing to answer her phone and by filing a domestic violence petition that was determined to be "bogus," unsupported by any evidence, and intended solely to prevent visitation. The father filed an emergency motion with the superior court in order to enforce his visitation, and the court strongly admonished the mother for her actions and ordered a detailed visitation schedule for the remainder of the father's limited leave. In June 2014 the father filed a motion to modify custody, and in July 2015 the court issued an oral decision and a written order, setting forth detailed findings regarding the substantial change in circumstances and the nine best interests factors and awarding primary physical custody to the father and liberal visitation to the mother. The court also awarded the father a portion of his attorney's fees. The mother appeals. We affirm.
II. FACTS AND PROCEEDINGS
Julie Scott and Dorien Gaines married in August 2012. Initially they lived in Anchorage, and it appears that a couple of months after getting married they moved to the Fort Hood, Texas area, where their child, B.G.,
A. Initial Custody And Visitation Order
The divorce trial was held in August 2013. The parties represented themselves, Scott being physically present and Gaines participating telephonically from Texas. On August 19 the superior court granted the divorce and issued findings of fact and conclusions of law. The court awarded Scott and Gaines shared legal custody of their child. There was "no practical way to have shared physical custody" due to the child's age, the fact that the parents resided in different states, and the parents' financial situations, so the court awarded primary physical custody to Scott and "liberal visitation rights" to Gaines. The court awarded Gaines "liberal phone and Skype privileges" for visitation with the child and ordered Scott to "take reasonable steps to accomplish this ongoing communication." The court also awarded Gaines a minimum of two weeks of consecutive overnight visitation in Alaska every year until the child entered school; Gaines was to provide Scott with notice at least 30 days before these visits, and the parties were to evenly split the cost of Gaines's airfare.
B. 2013 Best Interests Findings
The August 2013 divorce decree and custody order included detailed analysis of the superior court's findings under the nine best interests factors in AS 25.24.150(c). The court found that the child was a normal infant with no reported special needs, and that both Scott and Gaines, who were only 18 years old at the time of their divorce, had to learn how to parent. The first two best interests factors
Neither parent prevailed with respect to the third and fourth best interests factors.
The court found that the fifth factor
Gaines prevailed as to the sixth factor,
Neither parent prevailed as to the seventh or eighth factor.
Under the ninth factor,
C. Attempted Visitation And "Bogus" Domestic Violence Petition
In January 2014 Gaines provided Scott with notice of his intent to exercise visitation during his leave from military service in March. The notice was provided through his mother, who texted Scott to inform her that Gaines would "be arriving in Alaska to see [B.G.] around the first or second week of March." Text messages from Scott show that she received the notice.
Gaines's leave was limited, so he traveled directly to Anchorage from his deployment in Kuwait, but when he arrived on March 3 he was initially prevented from exercising his visitation. He testified that Scott would not answer her phone, even though he called her immediately upon his arrival in Anchorage and repeatedly called her after that. He also placed written notices on Scott's door and on two vehicles parked at the residence. Gaines testified that he contacted the police, who told him that they could not help him obtain visitation because it was a civil matter; one of the officers nevertheless called Scott several times on Gaines's behalf, but Scott still did not answer her phone.
On March 6 Gaines filed an emergency motion to compel visitation. In his affidavit he stated that he had been deployed to Kuwait since September 15, 2013, and that he had not seen the child since December 2012 (the first and only time he had met his child). He alleged that since that time Scott had "refused [him] all meaningful communication and contact with [his] son" and "active[ly] interfere[d] with [his] visitation" in violation of the August 2013 court order. He alleged that Scott's interference with visitation constituted a material change in circumstances and indicated that he wanted to preserve his right to seek modification of child custody when he returned to the United States. Gaines explained that he was scheduled to redeploy to Kuwait on March 19 and was unlikely to have the opportunity to return to the United States until September, and he requested a writ of assistance to allow him visitation during the remainder of his limited leave in Anchorage.
On March 5, the day before Gaines filed his emergency motion, Scott filed a domestic violence petition and was issued a 20-day ex parte protective order against Gaines, and on March 11 the superior court held an emergency hearing to address both Gaines's emergency motion and Scott's domestic violence petition.
On the record the court ordered a visitation schedule for Gaines to see the child during his remaining time in Anchorage. The court also ordered Scott to facilitate weekly visitation via phone or video communication after Gaines's return to Kuwait. The court strongly admonished Scott for her baseless interference with Gaines's visitation rights and warned her that she could be fined for such violations. The court's findings and orders regarding visitation were memorialized in a detailed written order issued the same day as the emergency hearing.
D. Modification Of Custody And Visitation
In June 2014 Gaines filed a motion to modify custody and visitation and requested that the superior court appoint a child custody investigator. He alleged a substantial change in circumstances based on Scott's intentional interference with his visitation and sought primary legal and physical custody of the child, with his parents "as designated care providers" during any temporary absence. Scott opposed his motion, arguing that AS 25.20.095(c) did not permit Gaines to delegate primary custody or visitation rights to his parents during deployment and that the requested modifications were not in the child's best interests. The court granted Gaines's motion for a custody investigation. The custody investigation was completed and the report submitted on December 31, 2014; among the materials reviewed by the court-appointed custody investigator was a report from a guardian ad litem (GAL) hired by Gaines to do a home study in Texas.
On July 27 the superior court issued an oral decision setting forth its findings of fact and conclusions of law, and issued a written order incorporating that oral decision and setting forth the terms of custody and visitation. The court found that there had been a substantial change in circumstances and that modification of custody was in the best interests of the child. The court denied Gaines's request for sole legal custody but granted Gaines's request for primary physical custody and awarded Scott liberal unsupervised visitation rights and liberal ongoing communication via phone and Skype or their equivalent.
In its oral decision the court applied the two-step analysis required by AS 25.20.110(a): "An award of custody of a child or visitation with the child may be modified if the court determines that a change in circumstances requires the modification of the award and the modification is in the best interests of the child." The court cited to Hamilton v. Hamilton for the proposition that there must be a substantial change in circumstances and indicated that this court has held that the inability to communicate or continued lack of cooperation between the parents could constitute a substantial change in circumstances sufficient for a modification of custody under the statute.
E. Substantial Change In Circumstances
The court found that Gaines had met his burden of showing a substantial change in circumstances and enumerated thirteen facts leading to that conclusion. First, Gaines was no longer deployed and Scott was no longer unemployed. Second, in March 2014 Scott "actively and repeatedly took steps to impede Mr. Gaines's visit with [B.G.]," including filing a "bogus" domestic violence petition. Third, "even following [the] court's August 19 order that said `unsupervised' and even following Judge McKay's March 11, 2014 order and very strong admonishments, Ms. Scott unilaterally imposed a supervisor requirement" by using a friend to supervise Gaines's visitation.
Fourth, the court found Scott had done other things constituting a substantial change in circumstances, including withholding information about the child's healthcare despite Gaines's request for such information. Fifth, Scott failed to disclose the child's need for dental work. Sixth, despite Gaines's requests, Scott refused to tell him where she worked or what her schedule was, which made it difficult to schedule Skype visitation (and scheduling had been an issue). Seventh, despite Gaines's requests, Scott refused to disclose what daycare services she used for the child.
The superior court recognized that the evidence in factors eight, nine, and ten was disputed but found that Gaines's mother and the Texas custody investigator were credible whereas Scott was not credible and noted that "this [was] not a close call."
The eleventh fact focused on testimony by Scott's mother, who indicated that she "somewhat object[ed] to Mr. Gaines having visitation," that she "[didn't] think that [B.G.] need[ed] more Skype with Mr. Gaines than once per week," that it was "not up to Ms. Scott to try to improve the visits," and that she perceived Gaines's note on her windshield seeking visitation in March 2014 as a "threat."
The twelfth fact related to Scott's argument that Scott was "immature when she filed the DV petition last year but that she has matured greatly and has learned from Judge McKay's strong words." The superior court found that she had "matured somewhat," but the court indicated that "it [was] not her immaturity that cause[d] th[e] court to find a material change in circumstances. Rather, it [was] her — and her parents' — obvious, exceptionally strong dislike, you might even call [it] hatred, of Mr. Gaines, and all three of them taking active and/or passive steps to limit Mr. Gaines's visitations and time with [B.G.], this despite their words to the contrary." The court also cited language from Gaines's post-trial memorandum, and it agreed with and adopted the following statement: "The practical limitations under which this court labored in 2013 no longer counsel for [Scott's] primary custody. Indeed, the facts today proclaim against that disposition in spades. The considerations which forced the court's reluctant acceptance of [Scott] as primary custodian [in 2013] no longer exist." The thirteenth and final fact enumerated by the court in support of its determination that there had been a substantial change in circumstances warranting modification of custody was that Scott herself acknowledged that custody should be modified.
F. 2015 Best Interests Findings, Including Consideration Of 2013 Findings
The superior court considered the nine statutory best interest factors both as they existed at the time of the custody modification proceeding and as the court had found them in its 2013 order. The court indicated that the first two factors — "the physical, emotional, mental, religious, and social needs of the child" and "the capability and desire of each parent to meet these needs"
The court found that the third factor, "the child's preference if the child is of sufficient age and capacity to form a preference,"
Neither parent prevailed under the fourth factor, "the love and affection existing between the child and each parent,"
Next the court addressed the fifth factor, "the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity,"
In addressing the sixth factor, "the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child,"
The court indicated that it could not say the same of Scott and her parents and that what it had "feared" in the previous order had "unfortunately come to fruition." The court pointed to Scott's and her parents' evasiveness and "verbal fighting" during cross-examination; "Scott and her father were evasive and not credible, and [her] mother was just a little bit better." Notably, Scott "testif[ied] a couple times that she has no idea how she could possibly do more to facilitate the relationship between [B.G.] and Mr. Gaines. . . . She said that even as she, her parents, and her attorney all . . . were acknowledging that Ms. Scott had made huge errors . . . in trying to stop Mr. Gaines's March 2014 visits." Despite Scott's claim to the contrary, the court found that Scott had not "done . . . everything satisfactorily since then." The court indicated that Scott had perjured herself in her "bogus" domestic violence petition
The court found that Scott and her parents had "tremendous animosity towards Mr. Gaines" for his not visiting the child and that they did "not seem at all inclined to [taking] any steps towards getting past that or the ability to get past it," and yet "it was Ms. Scott that took [B.G.] from Mr. Gaines in January 2013 . . . and moved to Alaska" and "it was Ms. Scott who thereafter filed a DV to prohibit Mr. Gaines from the contact with [B.G.] he was seeking." Scott also withheld information requested for visitation and limited what visitation did occur. The court summed up its analysis of factor six as follows:
Neither parent prevailed under the seventh or eighth factor because there was no evidence of "domestic violence, child abuse, or child neglect" and no evidence of "substance abuse by either parent or other members of the household [that] directly affects the emotional or physical well-being of the child."
For the ninth factor, "other factors that the court considers pertinent,"
Based on its analysis of these nine best interests factors, and having "considered all the evidence, including the two custody investigators' reports," the superior court found that it was in the child's best interests for Gaines to have primary physical custody and for Scott to have liberal overnight unsupervised visitation. The court emphasized that it did "not take lightly the decision to shift majority custody from the [child's] lifelong primary parent."
G. Attorney's Fees, Motion For Reconsideration, And Appeal
Both parties filed motions for attorney's fees. Gaines sought $6,296 out of his actual fees of $20,988; he also sought $10,816 in travel costs. Scott sought $7,500. The superior court explained that pursuant to AS 25.20.115, the relative financial situation of the parties and the parties' good faith (or lack thereof) were the key considerations for its award of attorney's fees. The court found that Gaines had "a good job, good benefits, and a good future" whereas Scott earned very little. The court then referenced its extensive findings about Scott repeatedly acting in bad faith whereas Gaines at all times acted in good faith. Declaring that "Scott ought to pay more but can't afford it," the court granted Gaines's request for attorney's fees and costs in the amount of $4,500, and it denied Scott's cross-motion for fees. In support of its decision not to award Gaines his full fee request, the court pointed out that Scott had already been sanctioned $1,575 for her baseless domestic violence petition and that Gaines's witnesses arguably could have elected to appear telephonically, rather than traveling from Texas to Alaska.
The superior court subsequently denied Scott's motion for reconsideration. Scott appeals, challenging the superior court's best interests findings and child custody modification, as well as the award of attorney's fees.
III. STANDARD OF REVIEW
The superior court has "broad discretion in deciding child custody disputes"
"An abuse of discretion has occurred if the trial court considered improper factors in making its custody determination, failed to consider statutorily mandated factors, or assigned disproportionate weight to particular factors while ignoring others."
Awards of attorney's fees are reviewed for abuse of discretion,
A. The Superior Court Did Not Err In Its Best Interests Findings And Did Not Abuse Its Discretion In Finding A Substantial Change In Circumstances And Modifying Custody.
Under AS 25.20.110(a), the superior court may modify a child custody award "if the court determines that a change in circumstances requires the modification of the award and the modification is in the best interests of the child." To modify custody, this court has required a substantial change in circumstances.
The superior court did not abuse its discretion in determining that there had been a substantial change in circumstances warranting modification of child custody. Scott argues that the change in custody was based on "minor infractions," namely, a social media post, an allegedly supervised visitation, and Scott's domestic violence petition. But the superior court characterized Scott's domestic violence petition as "bogus" and unsupported by any evidence; the court found the petition was filed for the sole purpose of preventing visitation. These findings are supported by the record and cannot be viewed as merely "minor infractions." Scott's argument also fails to recognize that the court made detailed findings, enumerating thirteen facts leading to its conclusion that Gaines had met his burden of showing a substantial change in circumstances. The facts considered by the court include changes in Gaines's and Scott's employment situations; Scott's withholding information about the child's healthcare, dental needs, and daycare arrangements; and Scott's refusal to share information about her work schedule, which made it difficult to schedule Skype visitation. The court pointed to the "obvious, exceptionally strong dislike" of Gaines that Scott and her parents exhibited and the fact that "all three of them [took] active and/or passive steps to limit Mr. Gaines's visitations and time with [B.G.], . . . despite their words to the contrary." In light of the court's detailed analysis, we conclude there was no abuse of discretion in the court's finding a substantial change in circumstances.
The superior court's analysis and findings regarding the nine best interests factors were similarly detailed and not clearly erroneous. The court carefully considered each of the nine best interests factors, including "the [best interests] findings made at the original hearing," in order to determine whether modification was in the best interests of the child.
Scott argues that the superior court erred in concluding that awarding primary custody to Gaines was in the best interests of the child, in finding that Scott "would not facilitate a frequent, loving relationship between" Gaines and the child, and in "placing undue weight on the factor of allowing a relationship and not enough weight on the desirability of maintaining continuity." However, the court's finding "that Mr. Gaines will do just fine in raising [B.G.] and communicating with, facilitating and encouraging the relationship between [B.G.] and Ms. Scott" is well supported by the evidence in the case and is not clearly erroneous. For example, the court made specific findings about Gaines's living situations and daycare plans and noted the fact that Gaines had an approved family care plan. In light of the findings in the court's decision, the court did not abuse its discretion in concluding that awarding primary custody to Gaines was in the best interests of the child.
The superior court's finding that Scott would facilitate the relationship between Gaines and the child "only if she is under very close judicial scrutiny" has substantial support in the record and is likewise not clearly erroneous. Even after the court explicitly ordered Scott "to cease and desist from any conduct which, either passively or actively, prevents, interferes with[,] or unnecessarily limits the greatest possible contact between the child and [Gaines]," the court found that she failed to comply. The court cited multiple instances of perjury and untruthfulness by Scott "for a single purpose: to not facilitate and encourage visitation." It found that she withheld information requested for visitation and limited what visitation did occur. Thus, the court did not clearly err in finding that Scott "would not facilitate a frequent, loving relationship between" Gaines and B.G.
Finally, the court did not place "undue weight on the factor of allowing a relationship and not enough weight on the desirability of maintaining continuity" in its analysis of the fifth best interests factor. Our decision in Hamilton indicates that the fifth factor "requires the court to look to the desirability of maintaining continuity."
B. The Superior Court Did Not Abuse Its Discretion By Awarding Attorney's Fees To Gaines.
Scott also argues that it was error for the superior court to award attorney's fees to Gaines and to not award attorney's fees to her. She argues that the court erred in awarding fees without making "explicit findings as to the parties' relative financial resources and whether the parties acted in good faith."
We AFFIRM the superior court's decision and order modifying child custody and its award of attorney's fees.