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Mengisteab v. Oates

Supreme Court of Alaska

August 3, 2018


          Appeal from the Superior Court No. 3AN-13-08093 CI of the State of Alaska, Third Judicial District, Anchorage, Patrick J. McKay, Judge.

          Nuria Mengisteab, pro se, Anchorage, Appellant. [*]

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




         Nuria Mengisteab filed a motion to modify custody to relocate with the parties' young son to another state, and then moved two days later. After several months the superior court ordered that the child return to Alaska and conditionally awarded primary custody to the father if Mengisteab chose to remain out-of-state. Appealing pro se, Mengisteab argues that the superior court erred in several respects. We conclude that none of her arguments have merit, except for her contention that the court failed to consider the effect separation from his mother would have on continuity and stability in the child's life. Because the court was required to consider the child's best interests based on the assumption that Mengisteab would remain out-of-state, we reverse and remand for further proceedings.


         A. Facts

         Saul was born in Alaska in March 2013 to Nuria Mengisteab and Ahla-Taki Oates.[1] Mengisteab and Oates never married, nor have they lived together. Mengisteab also has two older sons and an adult daughter from two other relationships. Oates is married to another woman and is raising three other children.

         B. Proceedings

         In July 2013 Oates filed a complaint requesting sole legal and primary physical custody of Saul with visitation by Mengisteab to be determined by the court. Mengisteab responded by requesting shared legal custody and primary physical custody. She also requested that Oates's visitation be limited to two days a week for two hours a day because Saul was breast-feeding. The parties participated in mediation and entered into an interim custody and child support agreement in September, giving Mengisteab primary physical custody, giving Oates visitation, and obligating Oates to pay $500 per month in child support for October and November. At a hearing in November to determine whether the parties could resolve any of their issues without trial, the court was informed that Mengisteab planned to move to Las Vegas in February 2014.

         In February 2014 the superior court held a half-day custody trial. Mengisteab testified that while she earlier had planned on moving out of state, she was not going to do so at that time, but she requested primary physical custody of Saul because it was in his best interests. She also alleged that Oates had a drinking problem and that his wife abused heroin. Oates testified that he sometimes had a few drinks at home with his family but "never did drugs" and "never had any abuse problems." Oates's wife testified that she had used illegal substances in the past but denied an abuse problem. Oates and Mengisteab's sister both testified that on several occasions when Oates had scheduled visitation, Mengisteab refused to let him see Saul. Testimony by both Mengisteab and her sister also indicated that Mengisteab was resistant to using a breast pump so that Saul could remain on his feeding schedule while Oates exercised his visitation; this made it difficult for Oates to exercise any prolonged visitation with Saul.

         After the conclusion of the hearing, the court made written findings on all the statutory best interest factors.[2] The court found that (1) Saul had no special needs; (2) both parents were capable and desirous of meeting Saul's needs; (3) Saul's preference was not applicable;[3] (4) love and affection existed between Saul and each parent; (5) the length of time Saul had lived in a stable, satisfactory environment and the desirability of maintaining continuity at the time favored Mengisteab as Saul had primarily resided with Mengisteab in a stable, satisfactory environment; (6) Mengisteab was clearly reluctant to facilitate an open relationship between Oates and Saul except on her restrictive terms; (7) there was no substantiated evidence of domestic violence, child abuse, or child neglect; (8) there was no substantiated evidence of substance abuse; and (9) Mengisteab's testimony was less persuasive because of her agenda to limit Oates's time with Saul, but she was a good provider and had met Saul's needs. Based on these findings, the court awarded primary physical custody to Mengisteab and established a visitation schedule for Oates.

         At the end of May 2014 Mengisteab filed a motion to modify custody. She informed the court that she would be moving out of state, that "[t]he current custody agre[e]ment will no longer work," and she repeated her concern that "there[was] substance and alcohol use in [Oates's] home." She also requested back child support from May 2013 to September 2013, indicating that during the "Feb[ruary] 2014 court hearing, child support in arrears was not addressed." Shortly after filing her motion, Mengisteab left Alaska with Saul without informing the court or Oates where she would be residing. She later testified that the initial plan was to move with her boyfriend to Las Vegas, where her boyfriend's parents as well as her ailing grandfather lived, but she and her boyfriend had split up and she ended up staying in Las Vegas for only two days. She then moved to Olympia, Washington where she had previously lived for ten years, where she had given birth to two of her children, and where she had extended family. She also indicated she had secured a job and begun taking classes to renew a medical assistant license she had obtained in Washington in 2002.

         Due to several scheduling and communication conflicts, the court was unable to hold a custody modification hearing until early October 2014, which continued in late November. During the October portion of the hearing, the parties had a contentious discussion about visitation and back child support.

         After the November portion of the hearing, the court issued an oral ruling allowing Oates to travel to Washington to visit Saul at least three times before June 2015 and authorizing half of the travel expenses to be credited against any child support Oates owed. The court ordered that Saul was to return to Alaska by July 2015 and indicated that if Mengisteab chose to return as well, the court would reevaluate visitation at that time. The court did not resolve the issue of back child support at the hearing.

         The court thereafter issued a written order, memorializing the oral ruling and elaborating on its custody decision:

Nothing has convinced the Court to change the findings in the decision concerning mother's unwillingness to let father be involved in [Saul's] life. The Court specifically finds that mother's move was motivated, in great part, by a desire to separate [Saul] from his father - or at least make it difficult to allow his involvement in [Saul's] parenting. Mother has no substantial ties to Washington. She lived and worked in Alaska for 5 years prior to her move.
A substantial change in circumstances has occurred - mother unilaterally has moved out of state without notification. Father's visits have been effectively terminated or diminished by her move. The Court finds this is not in [Saul's] best interests. [Saul's] best interests would best be served by having both parents available to [him]. If left in mother's primary custody in Washington, the court believes that mother would continue to interfere with father's access and parenting of [Saul].
The Court finds that it will be in [Saul's] best interest to return to Alaska by July 15, 2015. If mother moves back with [Saul], the 2/10/14 decision shall control visits. If mother doesn't move back, father will have primary physical custody and the parents shall submit proposed visitation plans to ensure mother's continued involvement in [Saul's] life.

         Mengisteab appeals. She argues the superior court erred in (1) finding that Mengisteab's move out of state was primarily motivated by a desire to keep Saul's father away from Saul; (2) finding that there was no evidence of substance abuse in Oates's household; (3) failing to consider the potential consequences to Saul of separation from his mother were Mengisteab to remain out of state; (4) calculating child support; (5) establishing visitation and addressing associated costs; and (6) demonstrating alleged bias against Mengisteab.


         Trial courts have "broad discretion in deciding child custody disputes"[4] and in determining whether a proposed child custody modification is in the best interests of the child.[5] We will overturn a 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 finding of fact is clearly erroneous only when a review of the entire record leaves us with a definite and firm conviction that the trial court has made a mistake."[7] When reviewing a custody decision, we will find an abuse of discretion "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."[8] We review de novo whether the trial court applied the correct legal standard.[9]

         We review visitation orders under an abuse of discretion standard.[10] "A court abuses its discretion if it issues a decision that is 'arbitrary, capricious, manifestly unreasonable, or . . . stems from an improper motive.' "[11] "We review de novo the question of whether a judge appears biased, which is assessed under an objective standard."[12]


         A. The Two Step Moeller-Prokosch Approach

         We have established a two-step approach for determining the best interests of a child in a custody dispute where one parent plans to relocate out of state with the child.[13] The first step is to determine whether the planned move is "legitimate," which we have defined as "not primarily motivated by a desire to make visitation . . . more difficult."[14] The second step is to determine what is in the best interests of the child in light of all relevant statutory best interests factors and the reasons for the relocation.[15] If the move is legitimate, the court is not allowed to hold the move against a relocating parent, but if the move is primarily motivated by a desire to frustrate visitation, the court must take that motivation into account.[16] In conducting the best interests analysis in this context, the court must perform a "symmetric" analysis, [17] which means the court must assume that the move in question will take or has taken place and "make a determination as to whether it would be in the best interests of the parties' [child] to be in the physical custody of [one parent] or [the other]" in their respective locations.[18]

         1. The superior court did not clearly err in finding that Mengisteab's move was primarily motivated by a desire to frustrate visitation.

         The superior court applied the first step in our two-step approach and found that Mengisteab's move was primarily motivated by a desire to deprive Oates of his ability to parent Saul.[19] Mengisteab argues that the court erred in making this finding. We disagree.

         While Mengisteab offered several legitimate reasons for her move, including social connections, family relationships, and schooling opportunities in Washington, the record provides clear support for the court's finding that Mengisteab's move was primarily motivated by an illegitimate purpose. Mengisteab repeatedly changed her plans about when she would leave Alaska, did not provide contact information or adequate notice of her move to the court, and did not provide either the court or Oates with a forwarding address. These actions led the court to find that Mengisteab was not credible and that she was motivated by a desire to interfere with Oates's ability to parent.

         The court's ultimately unfavorable determination with regard to Mengisteab's move was made in the context of other instances evident from the record where Mengisteab resisted allowing Oates to visit with Saul, such as her repeated cancelling of scheduled visitations and her refusal to use a breast pump to accommodate Oates's visitations into Saul's feeding schedule. This context supports the court's ultimate finding with respect to Mengisteab's motivations.

         Mengisteab argues that the court erred in finding that she had "[n]o substantial ties to Washington." Mengisteab testified that she previously lived in Washington for ten years, she still had all her friends from when she was 18, her children's aunts lived in Washington, she gave birth to two of her children there, and she had obtained a medical assistant license in Washington that she could renew after taking classes. Thus, she argues it was clear error for the court to find that she had no substantial ties to Washington. But even if this specific finding was clearly erroneous, in the larger context this error was harmless and does not undermine the abundant support the record offers for the court's ultimate finding that Mengisteab's primary purpose for moving was to undermine a relationship between Saul and Oates, especially considering Mengisteab had spent the five most recent years of her life living and working in Anchorage. We conclude the superior court did not clearly err in finding that Mengisteab's move was primarily motivated by a desire to interfere with Oates's visitation and ability to parent.

         More broadly, Mengisteab suggests that the superior court's finding impermissibly restricted where she could live with her children and her family. We have held that it would be error for a trial court to restrict where a parent can live.[20] A trial court does, however, have the authority to determine where a child will live by granting custody to a parent remaining in Alaska, so long as that determination is in the best interests of the child. In this case, the superior court clearly stated in the November 2014 custody modification hearing that it could not "order Ms. Mengisteab to be back. But [it could] order [Saul] to be back." This demonstrates that the court correctly applied this aspect of our case law, attempting to use its order to effectuate the best interests of Saul, notto control the location of Mengisteab. The superior court's finding that Mengisteab's move was primarily motivated by a desire to frustrate visitation and its resulting grant of custody to Oates may have restricted where Mengisteab could live with Saul, but it did not place any impermissible restrictions on her ability to relocate.

         2. It was legal error not to conduct a symmetrical analysis of the potential effect on continuity ...

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