from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, No. 3AN-06-12452 CI Erin B.
A. Sonneborn, Ashburn & Mason, P.C., Anchorage, for
W. Baranow, Law Offices of David Baranow, Anchorage, for
Before: Stowers, Chief Justice, Fabe, Winfree, Maassen, and
mother and father share j oint legal and physical custody of
their daughter. The mother moved for sole legal and primary
physical custody, alleging that a sustained lack of
cooperation between the parents and other changes in their
lives justified the modification of custody she requested.
She moved in the alternative for a modification of the
custody schedule. The superior court found there was no
substantial change in circumstances justifying a modification
of custody and awarded partial attorney's fees to the
father. We affirm these decisions, but we remand for the
superior court to consider whether the mother's proposed
modification of the custody schedule would be in the
daughter's best interests.
FACTS AND PROCEEDINGS
Collier and Will Harris have a daughter, Zada,  born in 2004.
Branwen and Will's relationship ended in
2006. In July 2007 they agreed to share
Zada's physical custody: During the school year Will, who
did not work weekends, would have custody three weekends per
month, and Branwen, who was a student and had flexibility
during the week, would have custody most
weekdays. During the summer months they would share
custody week on, week off. The superior court incorporated
these agreed terms into a partial custody order,
then held a trial in October 2008 to decide legal custody,
concluding that joint legal custody was in Zada's best
than four months later Branwen moved to modify custody,
seeking sole legal and primary physical custody of
Zada. She alleged that communication with Will
was no longer effective and that her graduation from school
and assumption of full-time employment prevented her from
having meaningful time with Zada under the existing
shared-custody schedule. The superior court denied the motion
without a hearing, explaining on reconsideration that
Branwen's voluntary changes to her schedule did not
amount to a substantial change in
circumstances. Branwen appealed to this court and we
affirmed on a different rationale. Although we held it was
error for the superior court to conclude "that a
voluntary change in employment cannot be the basis of finding
a substantial change in circumstances, " we agreed that
Branwen was not entitled to a hearing on her modification
motion because the changed circumstances she alleged could
not justify granting her sole legal and primary physical
custody, the only relief she requested.
2013 Branwen filed the motion to modify custody at issue
here, again seeking sole legal and primary physical custody.
She asked in the alternative that the superior court modify
the custody schedule to reflect both parents' changed
schedules. In support of her motion Branwen alleged that she
had gotten married, graduated from college, started a new job
with conventional working hours, enrolled in a graduate
program, and moved into a new home. She alleged that Will had
been seriously injured and quit work, enrolled in college,
changed residences, and also got married. Branwen asserted
that all these changes to the parties' living
arrangements, her limited ability to spend time with Zada
during her scheduled custody time, and the parties'
continued inability to communicate with each other
constituted a substantial change in circumstances that
justified a modification of custody.
2013 Branwen alleged an additional change-that Zada had been
sexually abused. Returning from her custody time with Will,
Zada reported to Branwen that a friend's father touched
her inappropriately while she was on a camping trip with
them. According to Branwen, the police determined that Will
had met the father only once, the evening before the trip,
and knew little about him.
Branwen's motion to modify custody was pending she asked
the court to appoint a custody investigator because, she
alleged, the "parties have little history of effective
communication, and it will be impossible for either party to
gather the necessary information about the other without the
assistance of a neutral investigator." The superior
court denied the request, finding that an investigator would
not be helpful and would be unnecessarily intrusive. Branwen
renewed her request based on an affidavit Will's wife
Leah had filed in a divorce action and a letter from
Zada's counselor recommending a custody
investigation. The court again denied the request.
superior court held a three-day evidentiary hearing on
Branwen's modification motion. The court heard testimony
from Will, Branwen, Leah, Zada's Girl Scout leader, and
the father of one of Zada's friends. The evidence largely
concerned the parents' communication, their living
situations, and the incident of sexual abuse.
superior court issued a written ruling on September 23, 2014,
denying Branwen's motion to modify legal and physical
custody. The court held that there was "insufficient
evidence to demonstrate that a substantial change in
circumstances ha[d] occurred that would justify modifying
custody" and that "[e]ven if there ha[d] been a
substantial change, it [wa]s in the best interests of Zada to
have equal access to both her parents." The court also
denied Branwen's request to change the physical custody
schedule to a 5-5-2-2 system (five days with each parent
followed by two days with each parent), though the court
found that some change was warranted. It granted leave for
the parties to request a hearing "on a workable schedule
that benefits Zada and is compatible with the parties'
filed this appeal. She argues that the superior court erred
by (1) finding no substantial change in circumstances; (2)
"failing to conduct a meaningful best interest
analysis"; (3) declining to modify the custody schedule
to better suit the parents' needs; and (4) awarding Will
partial attorney's fees.
STANDARDS OF REVIEW
review a trial court's child custody modification
decision deferentially, reversing the decision only when the
lower court abused its discretion or when its controlling
findings of fact were clearly erroneous." "Abuse
of discretion is established if the trial court considered
improper factors in making its custody determination, failed
to consider statutorily mandated factors, or assigned
disproportionate weight to particular factors while ignoring
others." The court's broad discretion extends
to its determination whether, following an evidentiary
hearing, the moving party has proven a substantial change in
circumstances, meaning one that affects the child's
welfare. "Factual findings are clearly
erroneous if a review of the record leaves us 'with the
definite and firm conviction that the superior court has made
a mistake.' "
award of attorney's fees under AS 25.20.115 is subject to
reversal only for abuse of discretion or if the court's
factual findings supporting the award are clearly erroneous.
We use our independent judgment to determine whether the
superior court applied the law correctly in awarding
The Superior Court Did Not Abuse Its Discretion When It
Denied Branwen's Motion to Modify Custody.
Statute 25.20.110(a) provides that' [a]n award of custody
of a child or visitation with the child may be modified if
the court determines that a change in circumstances requires
the modification of the award and the modification is in the
best interests of the child.' " The concepts
of legal and physical custody deserve separate
analysis. In the "two-step process" for
modification, "the parent seeking modification must
establish a significant change in circumstances affecting the
child's best interests; only if the parent makes this
showing does the court proceed to determine whether
modification is in the best interests of the
child." The best interests analysis is based on
"the statutory factors enumerated in AS
The superior court did not abuse its discretion by concluding
there was no substantial change in circumstances to justify
modifying legal custody.
contends that she and Will have demonstrated a
"continued lack of cooperation" that constitutes
"a change in circumstances sufficient to justify a
modification of [legal] custody under AS 25.20.110" and
that the superior court erred in failing to recognize this.
We have repeatedly observed that "[s]ustained
noncooperation between the spouses is grounds for denying
joint custody, because lack of cooperation hinders good
communication in the best interests of the
child." By denying Branwen's request for
sole legal custody, the superior court implicitly decided
that the parties' level of cooperation had not
deteriorated to the degree that the existing shared legal
custody should be changed.
support of her argument that this was error, Branwen asserts
that Will communicated with her only by email or text;
ignored her communications for days on end; responded at
times with aggression and insults; failed to keep her
informed of Zada's activities and important news such as
the fact that Will was no longer working; and neglected to
provide Branwen's contact information to Leah. Branwen
points to similar complaints by Leah to support her charge
that the noncooperation is largely Will's fault.
counters that the superior court properly relied on the
record to find that the parties communicated "in
sufficient detail and quality, though challenged in doing so
at times, to maintain their joint authority over Zada."
He contends that the evidence did not support Branwen's
claim that he was "passive-aggressive, " that
Leah's supportive testimony at the hearing repudiated
much of what she had alleged against ...