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Collier v. Harris

Supreme Court of Alaska

August 12, 2016


         Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, No. 3AN-06-12452 CI Erin B. Marston, Judge.


          Jacob A. Sonneborn, Ashburn & Mason, P.C., Anchorage, for Appellant.

          David W. Baranow, Law Offices of David Baranow, Anchorage, for Appellee.

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

          MAASSEN, Justice.


         A 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.


         Branwen Collier and Will Harris have a daughter, Zada, [1] born in 2004. Branwen and Will's relationship ended in 2006.[2] 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.[3] During the summer months they would share custody week on, week off. The superior court incorporated these agreed terms into a partial custody order, [4] then held a trial in October 2008 to decide legal custody, concluding that joint legal custody was in Zada's best interests.[5]

         Less than four months later Branwen moved to modify custody, seeking sole legal and primary physical custody of Zada.[6] 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.[7] 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.[8] 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.[9]

         In May 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.

         In June 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.

         While 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.[10] The court again denied the request.

         The 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.

         The 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' schedules."

         Branwen 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.[11]


         "We 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."[12] "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."[13] 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.[14] "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.' "[15]

         "An 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 fees."[16]


         A. The Superior Court Did Not Abuse Its Discretion When It Denied Branwen's Motion to Modify Custody.

         "Alaska 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.' "[17] The concepts of legal and physical custody deserve separate analysis.[18] 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."[19] The best interests analysis is based on "the statutory factors enumerated in AS 25.24.150(c)."[20]

         1. The superior court did not abuse its discretion by concluding there was no substantial change in circumstances to justify modifying legal custody.

         Branwen 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."[21] 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.

         In 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.

         Will 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 ...

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