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Bruce H. v. Jennifer L.

Supreme Court of Alaska

October 6, 2017

BRUCE H., Appellant,
JENNIFER L., Appellee.

         Appeal from the Superior Court of the State of Alaska, No. 3UN-12-00025 CI, Third Judicial District, Unalaska, Pat L. Douglass, Judge.

          Justin Eschbacher, Law Offices of G.R. Eschbacher, Anchorage, for Appellant.

          Kris O. Jensen, Law Offices of Dan Allan & Associates, Anchorage, for Appellee.

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




         Following a divorce a mother and father reached a custody settlement giving the mother sole legal and primary physical custody of their son; the father had visitation at the mother's discretion. After the father later requested joint legal and shared physical custody, the mother sought authorization to relocate with the child out of state. At a combined hearing on both issues the father presented evidence that the mother may have committed domestic violence against a former boyfriend. The superior court denied the father's custody modification request for failure to demonstrate a substantial change in circumstances. The court granted the mother authorization to move, finding her reasons for relocating legitimate and determining that the child's best interests were served by staying with the mother. Under the court's subsequent order the mother maintained sole legal and primary physical custody, with limited visitation by the father. The father appeals the court's denial of his custody modification motion, determination that the mother's move was legitimate, best interests determination, and visitation award. We affirm the determination that the mother's move was for legitimate purposes; however, because we vacate the underlying finding that no domestic violence occurred between the mother and her former boyfriend and remand that issue for renewed consideration, we also must remand the ultimate custody decision for renewed consideration. The visitation decision necessarily follows the custody decision and should include findings sufficient for appellate review.


         A. Facts

         Jennifer L. and Bruce H.[1] married in Kentucky in 2010. Their only child was born in September of that year. Shortly after their son's birth the family moved to Unalaska. When Jennifer and Bruce divorced in 2012 they agreed Jennifer would have primary physical and sole legal custody of their son.

         In the years immediately following the divorce, the son was in Jennifer's care full time; Bruce visited only sporadically. But for at least two years prior to trial, the son stayed overnight with Bruce-who lived with his girlfriend and their daughter, the son's half-sister - about three nights per week.

         B. Proceedings

         In February 2016, when their son was five years old, Bruce requested a modification to joint legal and shared physical custody. In an accompanying affidavit Bruce accused Jennifer of exposing their son to tumultuous and violent relationships and failing to provide him proper care. While Bruce's motion was pending, Jennifer indicated that she intended to move with their son to Kentucky to live with her mother and that she already had arranged their transportation. Jennifer then filed a motion seeking the court's authorization for her relocation with the child to Kentucky.

         The superior court ordered a joint evidentiary hearing on the motions. Bruce testified about his stable family life and his relationship with his son, and he called several witnesses who attested to his parenting abilities. Jennifer testified about her motives for moving to Kentucky, including her resignation from her job in Unalaska, a difficult relationship breakup, a desire to be near family, and the opportunity to further her education in Kentucky. Jennifer said that she had been planning to move for some time and had not realized she needed court permission to do so.

         Jennifer, Bruce, and Jennifer's mother testified that in Kentucky Jennifer and the child would be near Jennifer's family members, as well as Bruce's other son and Bruce's parents in Tennessee. Jennifer and her mother described the area and nearby attractions, such as cities, parks, and museums. Jennifer testified that she had supported visitation between Bruce and their son in the past and that she intended to continue supporting their relationship after the move.

         Bruce called Jennifer's ex-boyfriend, Jose L., to testify about Jennifer's conduct as a parent, her history of drinking, and an allegation that she committed domestic violence against Jose. Jose testified that during an argument "she tried to hit me, and I threw her to the ground and held her until the cops came." Jose stated that he held Jennifer down by her neck. He stated that the incident probably occurred in 2013, but he was not certain. Jose testified that Jennifer was "fairly intoxicated" at the time, that they argued often, and that there may have been other violent episodes. Jose admitted that Jennifer's attempt to hit him could be seen as self-defense.

         Jennifer also testified about the incident, saying that she did not remember what exactly caused their argument, but "I do know that [Jose] shoved me, trying to make me leave, " and "the argument progressed from there and... [he] ended up holding me down on the ground, and when I stood up is when I swung at him." Neither witness testified that Jennifer actually hit Jose. They disagreed only about timing, with Jose testifying that Jennifer tried to hit him before he pinned her to the ground and Jennifer testifying that she tried to hit him when she stood up afterward.

         After the hearing the superior court issued a modified child support and custody order and an accompanying order addressing both parties' arguments. The court denied Bruce's motion to modify custody, ruling that he had failed to show a substantial change in circumstances. Responding to Bruce's argument that the alleged domestic violence constituted a substantial change in circumstances, the court stated that "there is no time frame associated with this alleged incident and no testimony in support of the allegation, nor is there a report that this incident resulted injudicial proceedings or has occurred on multiple occasions." But because Jennifer was planning to relocate with their son, the court determined she had alleged a substantial change in circumstances. The court found Jennifer's motives for moving to Kentucky-employment, family, and educational and extracurricular opportunities for the child - were legitimate.

         The court next addressed whether physical custody with Bruce in Unalaska or with Jennifer in Kentucky would better serve their son's interests. Analyzing each best interests factor individually, [2] the court found that the stability factor slightly favored Jennifer because, although moving away from the son's father and childhood home would be disruptive, separating the child from Jennifer, his "primary parent, " could be more harmful. The court addressed the domestic violence incident again in the context of the best interests factors, concluding that it "does not rise to the level of domestic violence as defined by AS 25.24.150(g)." After weighing all the factors, the court determined that Jennifer should have primary physical custody; she also retained sole legal custody without comment by the court. The court awarded Bruce visitation consisting of one 30-minute phone call per week, a two-week summer visit, and alternating Christmas and spring break visits.

         Bruce appeals a number of the court's decisions, including its finding that Jennifer's move was legitimate; its best interests determination; its implicit legal custody award; and its visitation order.


         "Whether the court's findings on domestic violence are supported by the record is a question of fact which we review for clear error."[3] "Whether the superior court applied the correct legal standard is a question of law that we review de novo, 'adopting the rule of law that is most persuasive in light of precedent, reason[, ] and policy.' "[4] The superior court has broad discretion in determining "whether, following an evidentiary hearing, the moving party has proven a substantial change in circumstances, meaning one that affects the child's welfare."[5]

         "Trial courts have broad discretion in determining whether a proposed child-custody modification is in the child's best interests. We will set aside the superior court's best interests determination only if the trial court abused its discretion or if the fact findings on which the determination is based are clearly erroneous."[6] A factual finding is erroneous if, "based on a review of the entire record, the finding leaves us with a definite and firm conviction that a mistake has been made."[7]

         We review visitation awards for abuse of discretion.[8]


         A. The Superior Court's Denial Of Bruce's Modification Motion Was Based On Clearly Erroneous Factual Findings And Erroneous Legal Conclusions.

A parent seeking to modify custody bears the burden of showing a substantial change in circumstances sufficient to justify modifying custody.[9] A crime of domestic violence is a substantial change of circumstances as a matter of law, [10] and for physical custody purposes an out-of-state move is a substantial change of circumstances as a matter of law.[11] In denying Bruce's motion to modify custody, the superior court found, "[Regarding the accusation that [Jennifer] hit her boyfriend, there is no time frame associated with this alleged incident and no testimony in support of the allegation." Having found no evidence of domestic violence and no other substantial change, the court denied Bruce's motion to modify legal and physical custody.

         The superior court's discussion of domestic violence was based on clearly erroneous factual findings and erroneous legal conclusions. The court stated that there was no time frame associated with the alleged incident, but both Jose and Jennifer testified that the incident probably occurred in 2013. The court found there was no testimony supporting the allegation, [12] but it was the principal issue in Jose's testimony, and Jennifer also testified about it. The court also noted there was "no report that this incident resulted in judicial proceedings or has occurred on multiple occasions, " but neither separate judicial proceedings nor multiple incidents of domestic violence are required to find a substantial change of circumstances when there is a finding of a crime of domestic violence.[13] We must therefore vacate these erroneous determinations.

         The posture of this case requires us to remand for the superior court to reconsider Bruce's modification motion. The court determined that Jennifer's move amounted to a substantial change in circumstances and proceeded to the best interests analysis; in some circumstances that would render moot a competing modification motion alleging a different substantial change in circumstances. But a move "is not necessarily a substantial change for legal custody purposes."[14] Because only Bruce sought to modify legal custody, when the court denied Bruce's motion and considered only Jennifer's it did not address whether joint legal custody was in the child's best interests. It is therefore necessary to remand for the court to revisit its domestic violence findings and reconsider Bruce's modification motion. We note that the superior court should separately consider Bruce's stated reasons for modifying legal custody when reviewing his substantial change of circumstances allegations.[15]

         B. The Superior Court's Finding That Jennifer's Move Was Legitimate Was Not Clearly Erroneous.

         In relocation cases the superior court must assess first the legitimacy of the move and then the child's best interests under AS 25.24.150(c).[16] If the reasons for moving are legitimate, then "there is no presumption favoring either parent when the court considers the child's best interests."[17] In making its best interests determination, "the superior court must assume that the legitimate move will take place and consider the consequences that the move will have on the child - both positive and negative."[18]

         Bruce first challenges the legitimacy of Jennifer's move. For a move to be legitimate, the moving parent must show that the move "is not primarily motivated by a desire to make visitation more difficult."[19] We do not require the moving parent to prove a compelling reason to move so long as the primary motivation is not limiting visitation with the other parent.[20] When a legitimacy finding is based on ...

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