Carl D. Cook, Law Office of Carl D. Cook, P.C., Anchorage, for Appellant.
Cris W. Rogers, Law Office of Cris W. Rogers, Anchorage, for Appellee.
Before : FABE, Chief Justice, EASTAUGH, CARPENETI, WINFREE, and CHRISTEN Justices.
Divorced parents originally agreed to joint physical custody-split fifty-fifty-of their son and to negotiate each month's schedule based on the parties' work schedules. The mother later moved to set a specific schedule, on the grounds that communication was deteriorating, and that inconsistency in scheduling and occasional long separations from each parent were not in their son's best interest. The superior court set a schedule that resulted in a permanent change in the amount of time each parent would spend with the child. The father appeals, arguing that it was error to set a specific schedule because no change in circumstances occurred, and that the superior court erred in setting a schedule that significantly reduced his time with the child. We conclude that no change in circumstances was required to set a schedule because it is not a modification to set a schedule where the parties did not previously have any schedule. We also conclude that it was not error to find that setting a specific schedule was in the child's best interest. However, because the change in the agreed-to division of time with the child amounted to a modification of custody, we reverse the superior court's order and remand for further proceedings to set a schedule consistent with the parties' agreement to split custody fifty-fifty.
II. FACTS AND PROCEEDINGS
Eppie Havel (n/k/a Hogan) and Joshua Havel are parents to a son, born in 1999. Eppie and Joshua divorced in April 2006 and since then have maintained joint legal and physical custody of their son. Until entry of the court order setting a specific schedule that is the subject of this appeal, the parties attempted to set each month's custody schedule via e-mail based on their work schedules, in accordance with their separation agreement. Eppie is employed as an independent contractor for British Petroleum with a thirty-two hour per week schedule, and with
flexibility in when she works. Joshua is a flight engineer for Lynden Air Cargo whose monthly schedule is determined through a bid packet system. This means that he bids for his desired schedule each month, but because the system is based on seniority and he has low seniority, he does not always get his desired schedule.
In January 2007 and August 2007 the parties experienced substantial difficulty working out a suitable schedule, and returned to court as a result. Over the course of time, Eppie became " very stressed" by communication needed each month to set the schedule for the following month and became convinced that she and her son would ...