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Sergey Misyura v. Lyudmila Misyura

November 24, 2010

SERGEY MISYURA, APPELLANT,
v.
LYUDMILA MISYURA,
APPELLEE.



Appeal from the Superior Court of the State of Alaska, Fourth Judicial District, Fairbanks, Randy M. Olsen, Judge. Supreme Court No. S-13809 Superior Court No. 4FA-08-01460 CI

NOTICE

Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d). Accordingly, this memorandum decision may not be cited for any proposition of law or as an example of the proper resolution of any issue.

MEMORANDUM OPINION AND JUDGMENT*fn1

Before: Carpeneti, Chief Justice, Fabe, Winfree, Christen, and Stowers, Justices.

I. INTRODUCTION

Sergey and Lyudmila Misyura were married in 1994 and divorced in 2009. The superior court awarded Lyudmila primary physical custody of the parties' three children. Sergey was permitted visitation with the children provided certain conditions were met.

When Lyudmila planned to move out of state with the children, Sergey sought a preliminary injunction to prevent her from leaving Alaska. Sergey's motion for preliminary injunction was not accompanied by a motion to modify custody. The superior court denied the motion for preliminary injunction and Sergey appeals. He argues that Lyudmila should not have been permitted to move out of state with the children and that the superior court erred by not scheduling a hearing on his motion for preliminary injunction. We affirm the superior court's order denying the motion for preliminary injunction and rejecting Sergey's claim that he was entitled to a hearing.

II. FACTS AND PROCEEDINGS

The facts pertaining to the parties' 2009 divorce and related custody dispute, which left Lyudmila with primary physical and sole legal custody of the parties' children, are set out in Misyura v. Misyura (Misyura I), ___ P.3d ___, Op. No. 6525 (Alaska, Nov. 19, 2010).

In December 2009 Lyudmila became engaged to a person in the military. When the military transferred Lyudmila's fiancee to Georgia, she began planning to move there. The parties dispute whether Lyudmila notified Sergey of these plans: Lyudmila stated in an affidavit that she informed him about the move in December 2009; Sergey asserts that he first learned of the move from the parties' oldest daughter on February 24, 2010.

Sergey did not file a motion to modify custody, but on March 2, 2010, he filed a motion for preliminary injunction seeking an order prohibiting Lyudmila from leaving Alaska with the children. He requested expedited consideration of the motion and argued that Lyudmila should not be allowed to move because: (1) she had not mentioned the move to him or received his consent or the court's permission; (2) the move constituted a substantial change in circumstances; and (3) a hearing should be required first to determine the nature of the move, its potential impact on the children, and potential modifications of custody and visitation.

Lyudmila opposed the motion. She argued that it did not set forth grounds sufficient to meet any part of the three-part test for preliminary injunctions. Specifically, Lyudmila argued: (1) because she was willing to support contact and non-contact visitation between Sergey and the children after the move, he had not proven that he would suffer irreparable harm if she moved; (2) she could not be adequately protected from harm caused by an injunction requiring her to forgo the impending move; and (3) Sergey had not raised serious and substantial questions about the merits. Sergey filed a reply in which he denied any advance notice of the move, argued that the move would necessarily impinge upon his relationship with the children, and reasserted that a hearing should be required before Lyudmila left Alaska.

On March 4, 2010, the superior court denied the motion for preliminary injunction. The court found that Lyudmila's move was "for personal reasons" and not intended to frustrate Sergey's visitation. Sergey appeals the superior court's ...


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