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Leota Bagby v. Bryan Bagby

May 13, 2011

LEOTA BAGBY, APPELLANT,
v.
BRYAN BAGBY, APPELLEE.



Appeal from the Superior Court of the State of Alaska, First Judicial District, Sitka, David V. George, Judge. Supreme Court No. S-13785 Superior Court No. 1SI-07-00072 CI

The opinion of the court was delivered by: Christen, 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, email corrections@appellate.courts.state.ak.us.

OPINION

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

I. INTRODUCTION

Bryan and Leota Bagby were married in 1998 and divorced in 2008. They are the parents of one daughter. Prior to separation, the parties resided in Sitka but Leota moved to Anchorage soon after Bryan filed a complaint for divorce. After a bench trial, Bryan was awarded primary physical custody of the parties' daughter during the school year and Leota was awarded visitation during the summer and on alternating holidays. Bryan moved to Arizona after the custody trial. Leota filed a motion to modify custody, but the superior court denied the motion without holding a hearing. The superior court reasoned that Bryan's move to Arizona did not constitute a substantial change in circumstances because the original custody order contemplated that Leota's visitation would require long-distance travel between Sitka and Anchorage. Leota appeals. Because we have consistently held that an out-of-state move is a substantial change in circumstances as a matter of law, we reverse the superior court's order and remand for a hearing on Leota's motion to modify custody.

II. FACTS AND PROCEEDINGS

Bryan Bagby and Leota Bagby were married on September 4, 1998 and are the parents of one daughter, Natalie.*fn1 In April 2007, Bryan filed for divorce and Leota moved from Sitka to Anchorage. The parties resolved some of their custody issues through a settlement agreement and others were resolved at a trial held October 17 and 19, 2007. The superior court determined that it was in Natalie's best interests for the parties to share legal custody but for Bryan to have physical custody during the school year. Leota was awarded visitation during the summer and on alternating holidays. The parties were ordered to equally share the cost of flights between Sitka and Anchorage to facilitate Leota's two visitation periods - summer and one holiday each year. Leota was also allowed limited additional holiday visitation at her own expense.*fn2

Bryan moved to Arizona in October 2008. In December 2009 Leota filed a motion to modify custody. The superior court denied the motion to modify custody in an order that stated Leota "failed to demonstrate a change in circumstances entitling her to a hearing." The superior court reasoned that Bryan's move to Arizona did not constitute a substantial change in circumstances because the parties lived in "geographically distant" locations when the original custody decision was made, and Leota raised no allegations that the move to Arizona would have an impact on her visitation schedule. The superior court also ruled that Leota did not demonstrate that the move would have an impact on Natalie's welfare.

Leota appeals.

III. STANDARD OF REVIEW

We review de novo "[w]hether a moving party has made a prima facie showing sufficient to justify a custody or child support modification hearing."*fn3 "The parent moving for modification has the burden of proving a substantial change in circumstances as a threshold matter"*fn4 to obtain a hearing on whether the child's best interests require modification of custody. We will affirm a denial of a modification motion without a hearing "if, in our independent judgment, the facts alleged, even if proved, cannot warrant modification, or if the allegations are so ...


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