Superior Court No. 3AN-10-11884 CI
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Eric A. Aarseth, Judge.
Ronny M., pro se, Lake Placid, Florida, Appellant.
Nanette H., pro se, Palmer, Appellee.
Before: Fabe, Chief Justice, Stowers and Maassen, Justices.[Carpeneti and Winfree, Justices, not participating.]
This appeal concerns the custody and child support arrangement between Ronny M. and Nanette H. with respect to their two minor children, Ronny Jr. and Lavar, both of whom were born in Florida. Ronny and Nanette dated for several years after the births of their children but broke up in 2002 following a significant history of domestic violence by Ronny against Nanette, including at least three domestic violence convictions. In 2002 the Florida Department of Children and Families became involved in the matter and set up a case plan that significantly limited Ronny's visitation rights. Ronny complied with the case plan and eventually worked his way up to unsupervised visitation with the children, but in 2007 he stopped seeing or contacting them altogether. In 2009 Nanette married and moved to Alaska with the children without informing Ronny.
In 2010 Nanette filed a complaint in which she sought sole legal and primary physical custody of the children. Nanette also requested child support. Ronny opposed, requesting that the parties share joint legal custody and that he be awarded primary physical custody. The superior court held an evidentiary hearing over the course of two days in May and August 2011. At the conclusion of the hearing the superior court awarded primary physical custody to Nanette and a modified form of joint legal custody to Nanette and Ronny, with Nanette having final decision-making authority should the parties fail to agree on major decisions affecting the children's welfare. The superior court also granted Ronny summer visitation rights, provided that he pay for the travel expenses, and ordered Ronny to pay child support. Ronny appeals.
For the reasons explained below, we affirm the superior court's child custody award. We affirm the child support award but reverse and remand regarding the allocation of visitation expenses. We affirm the superior court in all other respects.
II. FACTS AND PROCEEDINGS
Ronny M. and Nanette H. began dating in Florida in 1998 when they were both 16. They are the parents of two minor children: Ronny Deion Jr., born in October 1999 in Lake Placid, Florida, and Lavar Eugene, born in November 2000, also in Lake Placid. Ronny and Nanette dated intermittently for five years; they never married.
Nanette testified that Ronny was abusive toward her throughout the duration of their relationship.  In June 2002 Ronny was arrested for assaulting Nanette. That same month Nanette obtained a temporary injunction for protection against domestic violence that prohibited Nanette and Ronny from contacting one another and that granted Nanette temporary custody of the children. Nanette subsequently reconciled with Ronny and sought to have the injunction dismissed, but it appears her efforts were unsuccessful. Later that year Ronny was twice arrested for committing two separate acts of domestic violence against Nanette. Ronny was convicted in all three instances.
The Florida Department of Children and Families (Department) intervened following Ronny's third arrest in September 2002 and petitioned a Florida court for an emergency shelter hearing. The court allowed Nanette to retain custody of the children, provided that she did not contact Ronny or allow him to see the children. Nanette and the boys moved into a shelter per court order and remained there for a few months.
The Department set up a case plan with which both Ronny and Nanette substantially complied. Ronny completed a batterer's intervention program, a parenting program, and a psychological evaluation as required by the case plan. In 2003 Ronny was awarded supervised visitation with the children, and he soon worked his way up to unsupervised visitation every other weekend.
Ronny remained involved in the boys' lives until April 2007, at which point he stopped seeing them altogether. Nanette obtained her nursing degree in 2008, and in 2009 she married her husband, Robert H. Nanette, Robert, and the boys moved to Alaska later in 2009, and Robert and Nanette had their own child in Alaska in 2010.Nanette did not inform Ronny of their move. Ronny continues to live in Florida.
In November 2010 Nanette filed a complaint with the superior court in Anchorage seeking primary physical and sole legal custody. She also requested child support. Ronny filed an answer and asked that he be awarded primary physical custody and that the parties share joint legal custody.
In January 2011 Ronny moved for interim relief asking for "weekly or open phone communication" and shared physical custody. Ronny asserted that Nanette had made it impossible for him to communicate with his children, but he wanted to reestablish involvement in their lives. Nanette opposed Ronny's motion and argued that the children should stay in her custody, citing Ronny's multiple domestic violence convictions. Nanette also expressed fear that if the boys were sent to Florida to visit Ronny, he might never send them back to Alaska. In addition to the motion for interim custody, Ronny filed a motion to show cause and a motion to transfer the case to Collier County, Florida; Nanette moved for appointment of a guardian ad litem.
In April 2011 Superior Court Judge Eric A. Aarseth granted Ronny's motion in part. Noting the history of domestic violence and the geographic separation, the superior court awarded Nanette interim sole legal and primary physical custody. The court awarded Ronny telephonic visitation with the boys two times per week between 6:00 p.m. and 7:00 p.m. The court denied the other three motions.
The superior court held a two-day evidentiary hearing in May and August 2011 at which Nanette appeared with limited representation and Ronny appeared pro se. At the first hearing Nanette reiterated her request for sole legal and primary physical custody, with either no visitation or supervised visitation for Ronny. Nanette testified that it was in the boys' best interests to remain in her custody because they had been in her care for their entire lives and were very bonded with her. Nanette also testified that it was in the children's best interests to relocate to Alaska. Nanette stated that her husband, Robert, worked on the North Slope, and moving to Alaska enabled them to stop paying for plane tickets between Alaska and Florida. Nanette also stated she was able to earn a higher wage as a nurse in Alaska, though in the past few years she had only been working six days a month in order to spend more time with her family. Nanette testified that both of the boys had been falling behind in school in Florida and had to be held back, but that their grades had significantly improved since moving to Alaska. Nanette stated that the boys were involved in Boy Scouts, basketball, track, and football, and were doing "wonderful."
Nanette also testified that Ronny voluntarily chose not to exercise his visitation rights during the last two years she and the boys were living in Florida. Nanette stated that Ronny initially complied with the visitation schedule set up by the Florida case plan, but after the case closed Ronny stopped picking up the boys at the specified times. Nanette testified that she did not tell Ronny she and the children were leaving Florida or immediately inform him of their whereabouts because he had not exercised his visitation rights for the two previous years and because she was afraid of him.
At the conclusion of her testimony Nanette reconsidered her initial statements regarding visitation. Nanette stated that the reason she did not want Ronny to have regular visitation with the boys was because he had often disappointed them in the past and she was concerned they would be hurt again. Nanette explained that when the interim visitation was first ordered the boys did not want to talk to their father, but they had recently become increasingly interested in reestablishing a bond with him. Nanette testified that if she and the boys were to travel to Florida to visit her family, she would agree to allow the boys to see their father.
Ronny testified telephonically from Florida. He requested shared physical custody, with the children spending six months in Florida and six months in Alaska. When pressed as to what the children would do for school under his proposed custody schedule, Ronny requested that the boys spend every other year and alternate holidays with each parent.
Ronny testified that he was involved in his children's lives to the extent that Nanette and the court would allow him. Ronny stated that he had tried to communicate with Nanette as soon as the no-contact order was lifted, but he did not know her contact information. Ronny explained that Nanette's father informed him in August 2010 that Nanette and the boys had moved to Alaska, but her father would not give him their address. Ronny testified that he had tried to file a custody action in Florida, but he had no address at which to serve Nanette. Ronny asserted that he was doing everything he could to reach out to his boys and to be a part of their lives, but Nanette was making it impossible.
The parties also disputed the extent to which Ronny was exercising his interim visitation rights. Nanette submitted her phone records in support of her testimony that Ronny often waited until the end of the designated hour to call or failed to call altogether. Nanette acknowledged that she typically did not answer her phone if Ronny called outside of the designated times. Ronny accused Nanette of violating the interim order and asserted that Nanette would often interrupt his phone calls with the boys by telling them to do things while he was on the phone. Ronny also explained that he did not call right at the time specified by the order because he wanted to give Nanette's family a chance to eat dinner and because he sometimes had to get his other children to bed in Florida.
The parties also discussed child support. Nanette testified that Ronny only paid $274 per child in 2010, all of which came from his social security payments. Ronny testified that he was completely unable to work because of renal failure and he relied entirely on social security and disability payments for his income.
Ronny also attempted to submit into evidence a tape of a December 1, 2010 phone conversation he had with Nanette's father, Donald P., which was recorded without Donald's permission. Ronny alleged that Donald stated on the recording that he would not give Nanette's address in Alaska to Ronny because Nanette did not want him to have it, and that Donald acknowledged on the recording that he did not condone Nanette's actions. The superior court elected to call Donald to testify rather than to play the tape.
Donald testified that Nanette had a very good relationship with her sons, and he described her as a loving parent. When asked if he thought the move to Alaska was in the children's best interests, Donald stated that he knew the boys were in a good environment and happy there. Donald testified that he thought, given the job opportunities, Nanette made the right choice for her family by moving to Alaska. Donald asserted that Ronny was not providing for the boys and had not "stepped up to the plate" insofar as they were concerned.
Ronny's girlfriend, Nichole S., also testified telephonically from Florida. She stated that she and Ronny started dating in 2001 and had three children together. Nichole testified that Ronny Jr. and Lavar had very good relationships with their father, with their half-brothers, and with her.
Nichole testified that Ronny and Nanette initially did not have any problems sharing custody of the boys in Florida, with Ronny and Nichole taking the boys every other weekend, and that she would often communicate with Nanette since Ronny and Nanette were prohibited from contacting one another. But, Nichole testified, in April 2007 Nanette and Ronny had a miscommunication about picking the boys up from school. According to Nichole, Nanette got frustrated with the situation and sent Nichole a text message stating that Ronny would not see his boys again. Nichole asserted that she and Ronny called, texted, and left messages with Nanette to see if they could reestablish visitation, but their efforts proved unsuccessful. Nichole testified that Ronny had consulted various attorneys in order to try to reestablish contact with the boys, but they "never got anywhere."
At the conclusion of the May hearing Judge Aarseth stated he had more questions for Nanette and Ronny and scheduled another ...