TRAVIS M. JUDD, Appellant,
v.
AMANDA BURNS f/k/a JUDD, Appellee.
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 ...