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Nancy M. v. John M.

Supreme Court of Alaska

September 13, 2013

NANCY M., Appellant,
v.
JOHN M., Appellee.

Page 1131

Robin A. Taylor, Law Office of Robin Taylor, Anchorage, for Appellant.

Allen M. Bailey, Anchorage, for Appellee.

Before: FABE, Chief Justice, WINFREE, MAASSEN, and BOLGER, Justices.

OPINION

BOLGER, Justice.

I. INTRODUCTION

The parties to this custody dispute initially lived together in Alaska, but their relationship ended before the birth of their daughter, and the mother relocated to California to attend graduate school. After lengthy litigation, the superior court awarded the father primary custody based on its findings that: (1) the father was more likely to foster a close and continuing relationship between the mother and the child; (2) the stability factor slightly favored the father; and (3) the mother's flexibility in caring for the child would be slightly limited due to the impending birth of her second child.

The mother appeals, arguing that the superior court's findings are clearly erroneous. She also argues that the court erred in its application of the custody statute, in disregarding the custody investigator's recommendations, and in formulating various aspects of the final custody order. We affirm the custody order, but we remand on the issue of visitation costs to clarify ambiguity in the court's order.

II. FACTS AND PROCEEDINGS

A. Facts

John M. and Nancy M. are the parents of four-year-old Nina.[1] The couple had an on-again, off-again relationship between 2007 and 2009, when Nina was born.

In 2010, Nancy relocated to California to attend graduate school. She resided in an apartment in Los Angeles. At the time of trial, Nancy was in the process of completing her master's degree and had applied to various doctoral programs in California. Nancy became pregnant again in 2011, and she was

Page 1132

due to give birth sometime in the spring of 2012.

John continued to reside in Alaska, employed as a professor at the University of Alaska. His job involved occasional travel to conferences outside of Anchorage. In 2011, John purchased a home in Anchorage. John has family in the Los Angeles area, including his mother, father, and brother.

B. Proceedings

Shortly after Nina's birth, John initiated legal proceedings to obtain sole legal and physical custody of Nina. Although Nancy wished to relocate with Nina to California to attend graduate school, the superior court prohibited Nancy from taking the child out of Alaska until the custody hearing had taken place. Following hearings in February and August 2010, the court issued an interim custody order awarding the parties joint legal custody and John primary physical custody of Nina. In October 2010, the superior court issued another interim order stating that the parties had agreed to share interim legal and physical custody of their daughter until trial. It provided that Nina would spend alternating three-month periods with her parents in their respective homes, which were now in different states because Nancy had relocated to California.

The superior court appointed a custody investigator. The investigator's final report recommended that the parties continue to share physical custody equally (continuing the then-current schedule alternating three-month periods of custody) until Nina began kindergarten in 2014. The custody investigator acknowledged that once Nina began attending school, the schedule would need to be altered so that one parent had custody during the school year and the other during the summer, but declined to recommend which parent should take which role.

The final, two-day custody trial occurred on January 31 and February 1, 2012. The court heard testimony from both parties, as well as from the custody investigator and from John's mother, Lisa. John argued at trial that he was the more stable parent and was more willing to foster a close and continuing relationship between Nina and the other parent. He proposed a custody schedule that would gradually increase his custodial time over the next three years until he had primary custody once Nina began school.

Nancy proposed that the parties continue to share custody equally, alternating custody every three months until Nina began kindergarten. But she argued that once school started, she should be awarded primary custody. The custody investigator's testimony echoed her 2012 report. She recommended that the parties share custody equally until 2014, when Nina began kindergarten; at that point, she proposed that the court determine which parent should have primary custody.

The superior court granted the parties joint legal custody and shared physical custody of Nina. The order provided that over the next three years, physical custody would transition to a schedule under which John had primary physical custody. The superior court considered the statutory custodial factors under AS 25.24.150(c).[2] It found that Nina had no special needs and that the second, fourth, and seventh factors favored neither party. It gave no ...


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