Sweeney v. Organ

          Appeal from the Superior Court of the State of Alaska, Fourth Judicial District, Fairbanks, Michael A. MacDonald, Judge. Superior Court No. 4FA-04-00025 CI.

         Mila A. Neubert, Neubert Law Office, LLC, Fairbanks, for Appellant.

         Gary L. Stapp, The Law Office of Gary L. Stapp, Inc., Fairbanks, for Appellee.

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

          OPINION

         STOWERS, J.

         I. INTRODUCTION

         A couple had one child during their marriage. After their divorce the parents shared physical and legal custody of the child. In 2013 the mother filed a motion to modify custody requesting primary physical custody to move with the child from Fairbanks to Anchorage, and the superior court granted her primary physical custody for as long as the parties resided in different communities. The court also made findings regarding the father's abusive communication style. The father moved to Anchorage soon after the mother, and the parties began sharing physical custody again. After an incident where the father brought the police to the mother's residence because she had declined to give him visitation time outside the custody order, the mother again moved to modify custody. Following a three-day hearing, the court found that there was a change in circumstances and modified legal custody by giving the mother the right to make all major parenting decisions. But it declined to give the mother primary physical custody because it found that doing so would be devastating to the child and would increase the friction between the parents.

         The mother appeals; her sole argument on appeal is that the superior court misapplied the best interest factors. She argues that the court should have awarded her primary physical custody because it found that the father's abusive communication style had not changed. And she argues that the court essentially rewarded the father's bad behavior by finding that friction between the parents would increase if they did not share physical custody equally. We affirm the superior court's order.

         II. FACTS AND PROCEEDINGS

         Janelle Sweeney and Robert Organ married in November 1997 in Fairbanks. They had one child, Elizabeth,^[1] who was born in 2000. Elizabeth was born with Dandy Walker Syndrome, a congenital brain malformation that causes her to function below her chronological age. The parties divorced in February 2005 and agreed to joint legal and shared physical custody: the physical custody arrangement provided for a 4/3-3/4 alternating week schedule with each parent having Elizabeth for 50% of the time annually. That arrangement changed to a week-on/week-off schedule in March 2014. Janelle subsequently remarried and had a second child.

         In 2012 Janelle filed a motion seeking primary physical custody of Elizabeth so that she and Elizabeth could move to Anchorage. The superior court granted Janelle primary physical custody of Elizabeth during the school year and Robert custody of Elizabeth during Elizabeth's summer vacation. But the court ordered that custody return to shared physical custody if the parents were to live in the same community again.

         After that order, Robert decided to move to Anchorage to be able to have shared physical custody. It took Robert a few months to make the move, and during that time Janelle exercised primary physical custody of Elizabeth. While Robert was in the process of moving he requested many weekends of visitation with Elizabeth that were outside the court's order. On one occasion, after Janelle denied Robert's visitation request, he showed up at Janelle's sister's house (where the family was living) with two Anchorage police officers, explaining that he wanted to give Elizabeth a present. Janelle believed that this was intended to harass and embarrass her, and she felt " shocked, frightened, and unnerved to have police show up at the house." She stated that the incident also greatly distressed Elizabeth.

         Janelle filed a motion to show cause in response to the police incident, and after a hearing the superior court found Robert's conduct to be " intentional and malicious and designed to be disruptive." The court warned that continued disruptive conduct by Robert would constitute a change in circumstances that could justify modifying the custody order such that Janelle would have primary physical custody and Robert would have very restricted visitation.

         Based on the court's findings, Janelle filed a motion to modify custody requesting primary physical and sole legal custody. The court held a three-day evidentiary hearing in August and September 2014. The court found that Robert's disrespectful and power-oriented manner of speaking to Janelle had be come intentionally disrespectful conduct that represented a change in circumstances. Specifically, the court concluded that the police incident was " ...