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Yvonne S v. Wesley H

January 14, 2011

YVONNE S., APPELLANT,
v.
WESLEY H.,
APPELLEE.



Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Mark Rindner, Judge. Supreme Court No. S-13562 Superior Court No. 3AN-95-01666 CI

The opinion of the court was delivered by: Carpeneti, Chief Justice.

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, e-mail corrections@appellate.courts.state.ak.us.

OPINION

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

I. INTRODUCTION

A divorced mother appeals the denial without a hearing of her motion to modify a two-year-old custody order. The parties' daughter, 16 at the time of the hearing, strongly preferred the current arrangement in which her father has primary physical custody. Because the mother's allegations, even if true, did not demonstrate a change of circumstances warranting a modification of custody, we affirm the superior court's decision.

II. FACTS AND PROCEEDINGS

Yvonne and Wesley have one child, Allison,*fn1 born September 22, 1993. When they divorced in 1996, the court ordered joint legal custody of Allison and granted Yvonne primary physical custody.*fn2 The court granted Wesley regular visitation on weekends and holidays.

In May 2008, when Allison was 14 years old, Wesley moved for primary physical custody of Allison. Allison submitted an affidavit expressing a strong desire to live with her father. Yvonne opposed the motion and the court held a hearing. Allison testified that she wanted to live with her father because he was supportive, they shared interests and communicated well, and he trusted her more than her mother did. In addition, Allison testified that she experienced a lot of stress living with her mother. For instance, Allison testified that she was hurt by her mother's excessive criticism of her weight and appearance. Allison also testified that she had a difficult relationship with her stepfather.

The court found that Allison was mature, made good decisions, had a healthy self-image, did not use drugs or alcohol, did well in school, and had not had trouble with the law. The court also found that the criticism Allison perceived from her mother was problematic and that some conflicts existed between Allison and her stepfather. The court found that Allison clearly wanted to live with her father, that she had legitimate reasons for her preference, that she was not being unduly influenced by either parent, and that she was of sufficient capacity and maturity to warrant consideration of her custody preference. The court also discussed each of the statutory factors for determining a child's best interests.*fn3 Weighing these factors, the court held that Allison's preference, her age, and the problems at her mother's house constituted a change in circumstances which warranted a change in custody. The court granted Wesley primary physical custody, giving Yvonne regular visitation. The court noted that Allison's preference was the "most significant factor" influencing its decision. Yvonne did not appeal this decision.

On June 3, 2009, when Allison was nearly 16 years old, Yvonne moved to for shared physical custody. Yvonne alleged several changed circumstances which she asserted warranted the change, including that Allison's grades and health had deteriorated under Wesley's care. Yvonne attached to her motion Allison's report cards and medical records, as well as several pages of emails between herself and Wesley. Wesley opposed the motion and Allison submitted an affidavit expressing her strong desire to remain living with her father. It does not appear that Yvonne submitted a reply to Wesley's opposition.

On June 22, 2009, the superior court denied Yvonne's motion to change physical custody without a hearing, stating that Yvonne "has not demonstrated a substantial change in circumstances." Yvonne appeals. Both Yvonne and Wesley appeared pro se during the custody proceedings discussed above, and also appear pro se before this court.*fn4

III. LEGAL FRAMEWORK AND STANDARD OF REVIEW

The question before us is whether Yvonne's allegations, taken as true, demonstrate a significant or substantial change in circumstances relative to the circumstances that existed at the time of the prior custody order, and whether those allegations, if true, would warrant a change in custody.*fn5 If the answer to both questions is yes, Yvonne is entitled to evidentiary proceedings and an opportunity to establish whether, in light of the changed circumstances, "it is in the child's best interest to alter the existing custodial arrangement."*fn6 Whether a moving party has made a prima facie showing of changed circumstances warranting a hearing is a question of law that we review de novo.*fn7 We review allegations of multiple changed circumstances in the aggregate to determine whether modification would be warranted if the allegations were proven true at a hearing.*fn8 We will affirm the denial of a motion to modify custody without a hearing if, in our independent judgment, either (1) "the facts alleged in the motion would not warrant ...


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