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Hope P. v. Flynn G.

Supreme Court of Alaska

September 4, 2015

HOPE P., Appellant,
v.
FLYNN G., Appellee

Page 560

Appeal from the Superior Court of the State of Alaska, Third Judicial District, Palmer, Eric Smith, Judge. Superior Court No. 3PA-04-00372 CI.

John Parsi, K& L Gates LLP, Anchorage, for Appellant.

Notice of nonparticipation filed by Appellee.

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

OPINION

Page 561

MAASSEN, Justice.

I. INTRODUCTION

At issue in this appeal are parents' motions to modify their existing child custody arrangement. Without a hearing, the superior court denied the mother's motion but granted the father's motion for a temporary modification; later, with the parties' agreement, the court made the temporary order permanent. The mother argues on appeal that she was entitled to evidentiary hearings. She also appeals the superior court's denial of her request that income be imputed to the father for purposes of calculating his child support obligation. We affirm the judgment of the superior court.

II. FACTS AND PROCEEDINGS

Hope P. and Flynn G.[1] are the parents of two minor children and have been divorced since 2005. By the terms of a November 2010 custody order, they had joint legal and shared physical custody on an alternating weekly schedule as long as they both lived in the same community.

A. Custody Modification Motions

In June 2012 Flynn resigned from his job after nine years as a journeyman telecommunications technician with the Matanuska Telephone Association (MTA). He worked for Chugach Power in Anchorage until December 2012, then in April 2013 he entered

Page 562

an apprenticeship program to become an inside wireman electrician. The program takes about five years to complete. It began with two months of classroom work; then, from June through October 2013, Flynn was employed on the North Slope. This temporary job required that he be out of town for four or five weeks at a time. Because the custody order granted Hope a right of first refusal, which she exercised, her custody time increased while Flynn was away working.

In August 2013 Hope moved for a permanent modification of physical custody and requested an evidentiary hearing. She asserted that the 50/50 custody schedule provided by the 2010 order was no longer realistic given Flynn's apprenticeship and his job on the North Slope, that this was a substantial change in circumstances, and that the custody order should be modified to " accurately reflect the parties' current arrangement." [2]

In September 2013 Flynn filed his own motion to modify physical custody, though he requested only a temporary change. He alleged that he was having financial and logistical difficulties transporting the children to two different schools with different start and end times. He proposed that Hope have physical custody of the children during the school week, that he have three weekends of visitation per month, and that this schedule be in place only during the 2013/14 school year, reverting to the alternating-week schedule in June 2014.

Hope agreed with Flynn's proposal that she have custody during the school year, but she opposed his request that the modification be only temporary, and she disagreed with the way he defined the weekends.[3]

The superior court ruled on the parties' modification motions in October 2013. It denied Hope's motion without holding an evidentiary hearing, reasoning that neither " the change in [Flynn's] work schedule" nor " the fact that [Flynn] ha[d] changed jobs itself" was a substantial change in circumstances. But the court granted Flynn's motion for a temporary modification, finding that " the difficulties of driving the children to school . . . is a change in circumstances." The essential elements of the temporary order were that Hope would have physical custody of the children during the school week and Flynn would have custody three weekends out of every four. The court ordered that this temporary arrangement last until June 1, 2014, and that a hearing would be ...


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