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Stephanie W. v. Maxwell V.

Supreme Court of Alaska

February 28, 2014

STEPHANIE W., Appellant,
v.
MAXWELL V., Appellee

Page 220

Appeal from the Superior Court of the State of Alaska, Third Judicial District, Palmer, Eric Smith, Judge. Superior Court No. 3PA-09-02329 CI.

Richard W. Postma, Jr., Law Offices of Dan Allan & Associates, Anchorage, for Appellant.

No appearance by Appellee.

Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and Bolger, Justices.

OPINION

Page 221

FABE, Chief Justice.

I. INTRODUCTION

Stephanie W. and Maxwell V. have a son, Terrance.[1] Maxwell sued for custody of Terrance, and the superior court granted him primary physical custody and joint legal custody. In Stephanie W. v. Maxwell V., [2] we reviewed that first custody order and affirmed it in most respects but remanded for reconsideration of two custody factors.[3] On remand, the superior court again granted Maxwell primary physical custody.

Stephanie appeals this second custody order. Two of her arguments, relating to discovery, were not preserved for appeal, are therefore forfeited, and do not constitute plain error. A third fails on the merits. She also challenges the superior court's determination of two custody factors in light of this court's remand instructions in Stephanie W., arguing that the superior court abused its discretion by failing to consider Maxwell's child support arrears in its stability determination, and that the superior court abused its discretion by holding against her, in the continuing-relationship determination, her allegations that Maxwell was manufacturing methamphetamine with Terrance present.

We affirm the superior court's order in all respects.

II. FACTS AND PROCEEDINGS

Terrance was born to Stephanie and Maxwell in December 2002 in New Mexico. His parents never married. Maxwell moved to Alaska and left Stephanie while she was pregnant. Maxwell had no relationship with Terrance for three and a half years until Maxwell's mother, who had maintained a relationship with Stephanie and Terrance, brought Terrance to Alaska for the summer of 2005. Terrance came to Alaska to live with Maxwell and Maxwell's mother from May 2006 to January 2007. He then lived with Maxwell for a full year starting in June 2008. Maxwell returned Terrance to Stephanie in New Mexico in June 2009 for what Maxwell thought was to be a summer visit. When Stephanie refused to send Terrance back to Alaska at the end of the summer, Maxwell filed a motion for custody in Alaska, seeking sole legal and primary physical custody.

1. First custody order and first appeal

In the superior court's first order granting Maxwell primary physical custody during the school year and Stephanie custody during the summers, with shared legal custody, the court relied on a number of statutory custody factors. Relevant to the first appeal was the superior court's determination under AS 25.24.150(c)(5), the stability factor,[4] that Maxwell had a " more stable situation and more stable personality" and could therefore " provide [Terrance] with a consistent living situation," while Stephanie was " in a considerably more fluid situation" because she worked four 12-hour shifts as a nurse at a hospital 70 miles from her home and could therefore not provide a stable environment for Terrance. In making this finding, the superior court did not consider the fact that Maxwell owed Stephanie $23,855.14 in outstanding child support arrears. The superior court also determined under AS 25.24.150(c)(6), the continuing-relationship factor,[5] that Maxwell was willing to foster a relationship between Terrance and Stephanie but that Stephanie was not willing to reciprocate.

Page 222

The court relied, in part, on the fact that Stephanie had alleged that Maxwell had sexually abused Terrance in Alaska and that, even though the superior court found that Stephanie had not proved that allegation by a preponderance of the evidence, Stephanie was unlikely to let the allegation go and would likely " convey[] her fears to [Terrance]."

In Stephanie's first appeal of the superior court's custody order in Stephanie W. v. Maxwell V., [6] we upheld the order in most respects but reversed and remanded for reconsideration of the stability and continuing-relationship factors.[7] On the stability issue, we surmised that " Maxwell's failure to pay child support was likely a contributing factor to Stephanie's grueling work schedule" and concluded that the superior court must " reconsider the continuity and stability factor taking account of Maxwell's failure to provide any meaningful monetary support for Terrance and Stephanie's efforts to provide economically for her children." [8] On the continuing-relationship factor, we noted that AS 25.24.150(c)(6) creates a statutory exception that precludes a court from holding against a parent her unwillingness to foster a relationship with another parent who has engaged in domestic violence or sexual abuse against the parent or a child.[9] On policy grounds, we adopted a rule protecting allegations of conduct that could constitute sexual abuse but are ultimately not proved at trial.[10] We noted that the superior court in this case found Stephanie's allegations of sexual abuse " troubling" and that Stephanie had introduced expert opinion testimony supporting her allegation.[11] We remanded with instructions " not [to] consider this factor against Stephanie unless she has continued her unwillingness to facilitate such a relationship in the period after the superior court made its evidence-based finding that Maxwell had not abused Terrance." [12]

2. Second custody order and arguments on appeal

On remand, the superior court held an initial hearing on August 3, 2012. Stephanie and her attorney participated by telephone, as did the judge, but Maxwell did not appear or participate by telephone. Stephanie's attorney told the superior court that " [Maxwell] ha[d] pretty much dropped off our radar," that calls and letters had bounced back undelivered, that Stephanie did not know when or where to return Terrance to Alaska, and that Maxwell had a history of disappearing. Based on these representations, the superior court invited Stephanie to file an expedited request for custody modification to permit Terrance to stay with Stephanie in New Mexico rather than return to Alaska.

Maxwell filed a motion with the superior court on August 20, 2012, stating that he had miscalendared the hearing and arguing that Stephanie had " misl[ed] this court by saying that [Maxwell] has 'fallen off the planet.'" Maxwell stated that he was attaching his telephone records " showing that there has in fact been communication" between himself, his son, and Stephanie, but he did not attach those records. At the subsequent trial-setting conference on August 30, 2012, the superior court told Maxwell, " You do need to supplement what you filed, because . . . the phone records were not attached to your paperwork. . . . Since you said it was there you need to supply it." Maxwell never supplied his phone records.

In preparation for the rescheduled hearing on remand, Stephanie sent Maxwell ten requests for production of evidence, eight interrogatories, and three requests for admission in two sets of discovery requests dated September 6 and 7, 2012. The three requests for admission requested Maxwell to admit the truth of the following statements: (1) " that [Terrance] has lived with [Maxwell's] mother . . . for the majority of the time between August 15, 2011 and May 30, 2012" ;

Page 223

(2) " that [Maxwell] refused to communicate with [Stephanie] about [Terrance's] return to Alaska prior to August 6, 2012" ; and (3) that " [Maxwell] stopped [Terrance's] counseling without first consulting with [Stephanie] as his joint legal custodian." Maxwell did not timely respond to these ...


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