Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Frank A. Pfiffner, Judge. Superior Court No. 3AN-09-11090 CI.
Timothy R. Watts, Anchorage, for Appellant.
Notice of nonparticipation filed by Wayne Anthony Ross, Ross & Miner, P.C., Anchorage, for Appellee.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and Bolger, Justices.
This appeal arises out of a custody dispute between Susan M. and Paul H. It involves (1) Susan's motion to sanction Paul for wrongfully denying her visitation and (2) her motion to enjoin Paul from relocating to California with the children after the 2013-14 school year, a move the superior court previously approved.
The superior court denied both motions, and Susan appeals. We affirm but strongly caution that a parent's unilateral suspension of the other parent's visitation based on perceived violations of a custody agreement is improper in all but exceptional circumstances. Even where such circumstances exist, the concerned parent should immediately inform the court of the problem.
II. FACTS AND PROCEEDINGS
Susan M. and Paul H. are the divorced parents of James (born June 2003), Preston (born December 2004), and Jennifer and Jacquelyn (twins born March 2007). In 2012 Paul discovered that Susan had surreptitiously left Alaska with the children. Susan had primary physical and sole legal custody of the children at that time. Paul was working on the North Slope on a three-week rotating schedule, and he exercised unsupervised visitation with overnights when he was not working. After Susan left Alaska, Susan and the children lived in several states, and Susan later claimed that she left Alaska to protect the children from Paul, who she alleged was a sexual predator.
Finding that Susan was " a bad parent" and had " taken it upon herself to repeatedly flout the [court's] orders" by denying Paul's visitation and running from state to state with the children, Superior Court Judge Frank A. Pfiffner subsequently modified custody to give Paul sole legal and physical custody, with Susan receiving very limited supervised visitation. The children were located in Colorado
and sent back to Paul in Alaska; Susan was arrested and later pleaded guilty to misdemeanor custodial interference. Even after her guilty plea, Susan still indicated that she did not believe she had done anything wrong and that she would act on her own again if she felt it was necessary.
In May 2013 Paul requested permission to relocate with the children to California where he had greater family support. Susan opposed the motion, and the superior court ordered a custody investigation. The custody investigator recommended that, so long as OCS did not substantiate any of Susan's abuse allegations against Paul, he should retain sole legal and physical custody and be permitted to move to California, with Susan still having only supervised visitation. The custody investigator also recommended that OCS file a child-in-need-of-aid petition for the children if it did substantiate any of the abuse allegations against Paul.
Susan and Paul reached a 26-page settlement agreement shortly after the custody investigator issued her report. Under the agreement Paul retained sole legal and physical custody with Susan having supervised visitation only. Susan's visitation supervisor was supposed to be within sight and sound of Susan and the children " as much as possible, recognizing that some activities may allow for the supervisor to maintain Susan and the children [within] sight or sound, but not both, for periods of time."
The agreement also allowed Paul to relocate to California with the children after they completed the 2013-14 school year, and it contained terms governing the events after the relocation to California. The agreement seemed to assume that both Paul and Susan would relocate.
Paul and Susan subsequently testified that they believed the agreement was in the children's best interests. The superior court concurred and adopted the settlement agreement as its custody order.
Approximately two months later -- and shortly before the end of the 2013-14 school year -- Susan filed a motion seeking sanctions against Paul under AS 25.20.140, alleging that Paul had willfully and without just excuse denied her visitation. Susan also requested make-up visitation. Paul opposed, and the superior court scheduled a hearing for May 2014.
Three days before the hearing, Susan filed her reply and a notice that she intended to ask the court to modify the custody order to prevent Paul from moving to California. She also raised new domestic violence allegations against Paul. At the hearing, Susan made an oral motion for an injunction and to further modify the custody order after Paul's counsel noted that Paul intended to leave for California that evening, after the hearing.
While the superior court was skeptical that Susan could prove a substantial change in circumstances, it allowed her to provide evidence to support her motion. Susan and two of her visitation supervisors testified regarding Paul's behavior and their observations of the children. Among other things, they alleged that Paul acted suspiciously by waiting outside the North Star Animal Hospital during one of Susan's visits; Paul yelled at Susan and a supervisor in front of the children after Susan took Jacquelyn and Jennifer to OCS; Paul abused Jennifer; and Paul gave Jacquelyn a black eye.
Paul also testified, primarily rebutting the allegations made against him. Paul explained that he waited outside the North Star Animal Hospital for about an hour and a half because he had witnessed Susan and the children leave the building without the supervisor, and he had wanted to make sure Susan was ...