Appeal from the Superior Court of the State of Alaska, Third Judicial District, Cordova, John R. Lohff, Judge pro tem. Superior Court No. 3CO-04-00002 CI.
John C. Pharr, Law Offices of John C. Pharr, P.C., Anchorage, for Appellant.
Kathryn Ruff, ANDVSA Legal Advocacy Project, Anchorage, for Appellee.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and Bolger, Justices.
Graham R. and Jane S. have one child. A 2006 court order granted Graham sole legal and primary physical custody. In 2012 Graham traveled to California for heart surgery and took the child with him, cutting off contact with Jane and causing her to miss a number of scheduled visits. When Graham returned to Alaska Jane moved for sole legal and primary physical custody, and the superior court granted her motion after an evidentiary hearing. Graham appeals the superior court's order, arguing that it was barred by principles of res judicata and collateral estoppel; that the court erred in finding that his interference with Jane's visitation rights was an act of domestic violence that constituted changed circumstances; and that the court erred in admitting evidence of his criminal convictions and of the child's preferences. We affirm the superior court's order modifying custody, concluding that there was no error in its decision not to apply res judicata or collateral estoppel; that there were changed circumstances justifying a modification of custody; and that any evidentiary errors were harmless.
II. FACTS AND PROCEEDINGS
Graham and Jane were both married to others when their daughter Gabby was born in May 2003. According to Graham, Jane had agreed to carry a child to be adopted by him and his wife; according to Jane, Graham coerced her into it. In any event, Jane signed a document purporting to give Gabby to Graham and his wife a few days after the child was born. But Jane revoked that document less than a year later, and a dispute over Gabby's custody began.
A. The First Custody Order Grants Graham Primary Custody.
Graham and Jane reached a custody and visitation agreement that was approved by court order in March 2006. The order granted sole legal and primary physical custody of Gabby to Graham but allowed Jane visitation on alternate weekends, with additional visitation in the summer. Graham was allowed to take extended winter vacations with Gabby, so long as Jane was given make-up visits; the order also specifically authorized travel to the Philippines, where both parents have family. But travel required 30 days' advance notice to the other parent, a copy of the itinerary, contact information, and a copy of the return tickets.
B. Graham Travels To California With Gabby.
On March 13, 2012, Graham suffered a heart attack and was transported from Cordova to Anchorage for emergency treatment. Graham's wife went to Anchorage as well, taking Gabby along with her. Jane, according to the schedule, was supposed to have Gabby on the weekend; but Graham's wife called the Cordova Family Resource Center, the usual location of the parents' custody exchanges, and, as she later testified, told someone there " we can't have the exchange for [Jane's] visitation because of emergencies [that] happen[ed] in our family." Nicole Songer, the executive director of the Family Resource Center, testified about this message as well; she described its substance as only " that there would not be a visitation today due to . . . [Graham] being in Anchorage," with no information about how to call Graham back or how to get in touch with Gabby. Jane also testified that she had no contact number for Graham and did not know where Gabby had gone.
On March 28, Graham left Anchorage for Los Angeles, California, accompanied by his wife and Gabby. He underwent heart surgery in Los Angeles, was discharged from the hospital in stable condition on April 10, but remained in California.
Gabby continued to miss her scheduled weekend visits with Jane; according to Jane, she still did not know her daughter was in California. After a month of this, the Cordova
Family Resource Center received a faxed letter from a California attorney representing Graham. The letter, addressed to Songer, informed her that Graham had undergone " a 12-hour heart surgery in Los Angeles," that " his doctors estimated 3 months of recovery," that Gabby " wanted to stay with [her] dad," and that Gabby therefore had been enrolled at a local elementary school " in order not to disrupt her education." The letter stated that " [w]ith no complications in his recovery, [Graham's] family plans to go back to Cordova in 3 months." The letter advised Songer to direct any inquiries " to ...