Judd v. Burns

         Appeal from the Superior Court of the State of Alaska, Fourth Judicial District, Fairbanks, No. 4FA-13-01989 CI, Michael P. McConahy, Judge.

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

          Margaret O'Toole Rogers, Foster & Rogers, LLC, Fairbanks, for Appellee.

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

          OPINION

          MAASSEN, Justice.

         I. INTRODUCTION

         Divorced parents shared custody of their son equally pursuant to a parenting agreement. The mother asked the superior court to modify the agreement to allow her to move with the child to Hawaii. Following a two-hour hearing the court modified custody, granting primary physical custody to the mother; it also modified legal custody to allow the mother final decision-making authority, subject to later court ratification, though neither party had asked that legal custody be modified. The father appeals.

         We conclude that the superior court did not clearly err or abuse its discretion when it granted modification and awarded primary physical custody to the mother, and we affirm that part of the court's decision. But we hold that it was an abuse of discretion to modify legal custody when neither party had requested it, the parties were not on notice that it was at issue, and the evidence did not demonstrate a need for it. We therefore vacate the modification of legal custody.

         II. FACTS AND PROCEEDINGS

         A. The Parenting Agreement

         Travis Judd and Amanda Burns were married in 2008 and have a son, H., who was born in 2011. Amanda also has another son, K., from a prior marriage.^[1] The couple separated in May 2013. Amanda received a default divorce, but when Travis appeared with new counsel the court set the default aside in August 2014 and scheduled a custody trial for the following year.

         In the meantime the court left in place the custody order entered after default, granting Amanda sole legal and primary physical custody, with reasonable visitation for Travis. The court also referred the case to a child custody investigator for early evaluation, possible settlement discussions, and an investigation if the parties could not settle.

         In October 2014 Travis moved for temporary orders granting joint legal and shared physical custody. In February 2015, as the scheduled hearing on the motion was about to begin, the parties stipulated to temporary orders by which they shared legal custody, Amanda had primary physical custody, and Travis had regular daytime visitation. They agreed that Travis's visitation would increase to include overnights once he obtained a substance abuse assessment and complied with any resulting recommendations.

         Through mediation, the parents were then able to reach a permanent parenting agreement before trial. They agreed to joint legal custody and that they would gradually transition to shared physical custody as Travis satisfied certain conditions, including moving from his dry cabin to more conventional housing, undergoing an anger management assessment, and completing any recommended treatment. Travis and Amanda would ultimately share physical custody 50-50 once the conditions were satisfied.

         By August 2015 Travis had obtained conventional housing, had completed the assessment, and had attended recommended classes. The parties began sharing custody equally a month later.

         B. Amanda's Motion To Modify Custody

         In September 2015 - shortly after the parties began sharing custody equally-Amanda filed a motion to modify the custody agreement to award her primary physical custody. She explained that she planned to move to Hawaii before the start of the 2016 school year with her new husband and K., her older son, and she wanted H. to move with them.^[2] She asserted that the move would provide "opportunities for a larger income, increased family stability, and a better environment" as well as "open doors for" the two boys. She wanted H. to live with her in Hawaii during the school year and have "liberal summer and holiday visitation" with Travis in Fairbanks.

         Travis opposed the modification, arguing that the move was intended to avoid sharing custody and was not in H.' s best interests. He pointed to Amanda's history with K. and contended that he and Amanda "actually got married when they did . . . because Amanda believed that being married and planning to move out of state (at that time, Texas) would make it easier for her to obtain primary physical custody of [K.]." According to Travis, Amanda's history with K.'s father demonstrated the unlikelihood that she would help maintain a strong long-distance relationship between Travis and H. Travis also requested appointment of another custody investigator, a request the court denied.

         The court found that Amanda's allegations justified an evidentiary hearing and scheduled a two-hour hearing to decide two relevant issues: whether Amanda's proposed move was legitimate and whether moving to Hawaii with Amanda was in H.' s best interests.^[3] Following the hearing, the court agreed with Amanda's position on both issues. It granted the requested modification, awarding Amanda primary physical custody and Travis summer and holiday visitation. The court also modified legal custody, granting Amanda final say on legal custody issues but requiring her to seek the court's approval within ten days of a disputed decision.

         Travis appeals, raising these issues: (1) whether the superior court clearly erred in finding that Amanda's planned move was legitimate; (2) whether the court abused its discretion when it failed to order a custody investigation; (3) whether the court abused its discretion by limiting the evidentiary hearing to two hours; (4) whether the court abused its discretion when it decided that it was in H.'s best interests to move to Hawaii with Amanda; and (5) whether the court abused its discretion by modifying legal custody.

         III. STANDARDS OF REVIEW

         "Superior courts have broad discretion in child custody decisions, and we will reverse only if findings of fact are clearly erroneous or if the superior court abused its discretion."^[4] "A factual finding is clearly erroneous when a review of the record leaves the court with a definite and firm conviction that the superior court has made a mistake."^[5] "An abuse of discretion exists where the superior 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.' "^[6] "Additionally, an abuse of discretion exists if the superior court's decision denied a substantial right to or substantially prejudiced a party."^[7] We apply "the abuse of discretion standard to review a trial court's decisions relating to appointment of a child custody investigator."^[8]

         IV. DISCUSSION

         "Alaska Statute 25.20.110 authorizes courts to modify child-custody and visitation awards if (1) there has been a change in circumstances that justifies modification and (2) the modification is in the best interests of the child."^[9] "We have held that a custodial parent's decision to move out-of-state... amounts to a [substantial] change in circumstances as a matter of law" for purposes of physical custody modifications.^[10] Accordingly, both parties in this case agree that Amanda's proposed move constitutes a change in circumstances that may justify a modification of physical custody.

         When deciding whether to modify custody because of a parent's planned move, the superior court must determine "whether there are legitimate reasons for the move."^[11] If the move is legitimate, "there is no presumption favoring either parent when the court considers the child's best interests."^[12] "The relocating parent secures primary custody by showing that living with that parent in a new environment better serves the child's interests than living with the other parent in the current location."^[13] "The ultimate focus of the custody modification statute is the best interests of the children."^[14]

         A. The Superior Court Did Not Clearly Err When It Found That Amanda's Move Was Legitimate.

         "A move is legitimate if it is not primarily motivated by a desire to make visitation more difficult."^[15] Here, the superior court recognized "[t]he reality [that] any move by a parent from a common community" will make the other parent's visits more difficult, but it found persuasive the testimony of Amanda and her husband that making visitation more difficult for Travis was not their intent. The court found it "more probable than not that the move is based on considerations of financial security and opportunities for growth."

         Travis argues that this finding was erroneous because "Amanda's stated reasons for the move changed over time, " which should have prompted more judicial skepticism. He argues that Amanda first cited "economic reasons" for the move before testifying that the main reason was the boys' education. But Amanda's explanations were not so inconsistent that the superior court could not find them credible. In her request to modify custody she cited Hawaii's "opportunities for a larger income, increased family stability, and a better environment." She reiterated these themes at the hearing, and her new husband testified about his own job opportunities in ...