Appeal
from the Superior Court of the State of Alaska, No.
3AN-10-12834 CI Third Judicial District, Anchorage, Patrick
J. McKay, Judge.
Allison Mendel and John J. Sherman, Mendel Colbert &
Associates, Inc., Anchorage, for Appellant and
Cross-Appellee.
Rhonda
F. Butterfield, Wyatt & Butterfield, LLC, Anchorage, for
Appellee and Cross-Appellant.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and
Carney, Justices.
OPINION
MAASSEN, Justice.
I.
INTRODUCTION
The
parents of a young son divorced in 2011, agreeing that the
mother would have primary physical custody during the school
year. The father moved to California. When the child began
experiencing behavioral problems, the parents agreed to
switch custody for a few years, giving the father primary
physical custody in California during the school year. The
parties signed a custody modification agreement to this
effect in December 2014, including both parents' waivers
of child support, but they did not file the agreement in
court.
The
next year, following a dispute over the mother's
visitation, both parties sought a judicial resolution of
custody. The father went to a California court seeking to
make the 2014 change in custody permanent. The mother went to
Alaska superior court seeking to enforce the original 2011
agreement that gave her primary physical custody. The Alaska
court asserted jurisdiction; it ultimately modified physical
custody in favor of the father but maintained the
parents' joint legal custody. The court also modified
child support, ordering the mother to pay child support
effective from the date the father first sought to modify
custody in California.
The
mother appeals the physical custody and child support orders,
challenging among other things the child support order's
effective date. The father cross-appeals, challenging the
decision on joint legal custody. We affirm the court's
custody and child support orders, concluding that they are
well supported by the evidence and that the court did not
abuse its discretion in selecting the child support
order's effective date.
II.
FACTS AND PROCEEDINGS
A.
Facts
Darcey
and Matthew Geldermann married in 2005 and had a son in 2008.
They divorced in February 2011. The superior court approved a
custody agreement that established joint legal custody but
gave primary physical custody to Darcey, with Matthew
receiving visitation during summers and holidays. Matthew
thereafter moved to Washington, spent time as a contractor in
Iraq, and eventually settled in California.
1.
Custody experiment
The
parties agree that their son exhibited behavioral problems
when he started kindergarten in 2013; psychologists diagnosed
him with autism, atypical attention deficit and hyperactivity
disorder, unspecified anxiety disorder, and social
communication disorder. To deal with these problems Darcey
and Matthew agreed to try a temporary custody switch: their
son would live primarily with Matthew in California for two
and a half years and visit Darcey over summers and holidays.
Around December 2014, when the child was six, the parties
negotiated a new custody agreement that acknowledged the
switch, but they did not formalize their new agreement in
court.
The
informal new arrangement worked well for about 10 months. The
child started school in California in January 2015. Matthew
hired a nanny and established a rigorous routine, including
many extracurricular activities. The child had fewer
behavioral problems, and his grades improved. Matthew claims
that his son "thrived" under the new arrangement.
But the
arrangement broke down in the fall of 2015 after a dispute
over a planned visit by Darcey. The superior court found that
the dispute generated "some angry emails,"
including threats by Darcey that she would retrieve the child
from California and make it difficult for Matthew to see him
again. The parties filed custody-related motions in both
California and Alaska courts; meanwhile the child remained
with Matthew in California.
While
both cases were pending, the parties struggled to maintain
civil communication with each other. The California court
awarded Darcey a visit with her son in November 2015 when she
was there for a hearing; the visit was not a success, though
the parties disagree on why. In March 2016 Matthew moved the
child to a new school following a bullying incident and
failed to immediately inform Darcey of the change. In April
the Alaska superior court, retaining jurisdiction, awarded
Darcey spring-break visitation, requiring only that she
provide an itinerary. The parties disagreed about how
specific the itinerary needed to be, and Darcey ultimately
canceled her visit. The superior court described the
"failure" of the spring break visit as
"disturbing" and "highly unfortunate."
2.
Child support
As part
of their 2011 divorce, the parties' court-approved
settlement agreement provided that Matthew would pay Darcey
child support. But when their son moved in with Matthew in
December 2014, "[t]he parties agree[d] that neither
party [would] owe child support to the other party as a
result." In January 2015, accordingly, Darcey withdrew
from the collection services provided by Alaska's Child
Support Services Division (CSSD). But when their current
dispute arose, Darcey again requested CSSD assistance, and
Matthew received a letter from CSSD in October 2015 directing
that he pay Darcey the child support required by the 2011
agreement.
B.
Proceedings
1.
Custody
In
early October 2015 Matthew filed an ex parte custody action
in California, seeking a transfer of jurisdiction from
Alaska, a temporary emergency custody order, and a
modification of custody to reflect the parties' 2014
agreement giving him primary physical custody. Shortly
thereafter Darcey commenced the current Alaska proceedings;
she filed a motion to enforce the original 2011 custody
arrangement that gave her primary physical custody. The
Alaska superior court conferred with the California court,
held an evidentiary hearing on jurisdiction in January 2016,
concluded that neither forum was convenient for both parties,
and ultimately decided to retain jurisdiction in Alaska.
Matthew
had not filed a motion in Alaska to modify custody. The
superior court concluded, however, that his opposition to
Darcey's motion to enforce the 2011 order amounted to,
"at the very least, an implied custody modification
request," and it scheduled a trial on both physical and
legal custody. The parties presented a number of witnesses,
including themselves, their respective new spouses, their
son's California nanny, and Darcey's mother.
After
hearing the evidence, the court denied Darcey's motion to
enforce the 2011 order and awarded Matthew primary physical
custody during the school year. Darcey was given summer
vacations and alternating holidays as well as "generous
and liberal, unrestricted, unsupervised visits with [the
child], whenever she is in the same geographic
location." Although the court found significant
communication problems between Darcey and Matthew, it
continued joint legal custody. Darcey sought reconsideration,
claiming that custody modification was inappropriate absent a
formal motion from Matthew. The court denied the motion,
explaining that custody and visitation had been "always
clearly at issue."
2.
Child support
In
October 2015 Darcey filed a motion to reduce to judgment
past-due amounts of child support calculated under the 2011
order. In early December Matthew sought to stay enforcement
of those child support provisions, and in January 2016 the
court issued an order precluding collection of child support
arrears from December 2014 until it ordered otherwise.
Matthew
did not file any other documents related to child support
until May 18, 2016, following the court's custody
decision, when he filed a proposed child support order. He
proposed an effective date of "November 1, 2015, which
is the first of the month after [Darcey] was formally served
with notice of [Matthew's] custody action in
California." Darcey objected, arguing that Alaska Civil
Rule 90.3(h)(2) prohibited a retroactive date because Matthew
had never filed a motion to modify child support.
The
court signed a new child support order on June 1, 2016,
requiring Darcey to pay support to Matthew. The order used
Matthew's proposed effective date of November 1, 2015.
Darcey sought reconsideration, which was denied.
Both
parties appealed. Darcey seeks review of the physical custody
and child support orders, and Matthew challenges the award of
joint 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."[1] "A factual finding is clearly
erroneous when a review of the record leaves [us] with a
definite and firm conviction that the superior court has made
a mistake."[2] "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.'
"[3] "Additionally, an abuse of discretion
exists if the superior court's decision denied a
substantial right to or substantially prejudiced a
party."[4]
"We
review an award of child support for abuse of
discretion."[5] But "[w]hether the superior court
applied the correct legal standard to its child support
determination is a question of law that we review de
novo."[6] Finally, "[t]he adequacy of the
notice and hearing afforded a litigant in child custody
proceedings involves due process considerations," which
we also review de novo.[7]
IV.
DISCUSSION
A.
The Superior Court Did Not Abuse Its Discretion By Finding A
Substantial Change In Circumstances For Purposes Of
Modifying Physical
Custody.
"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."[8] "Once the movant meets [the initial]
burden [of changed circumstances], he or she is entitled
'to a hearing to consider whether, in light of such
changed circumstances, it is in the child's best
interests to alter the existing custodial arrangement.'
"[9]
Darcey
challenges only the court's decision on the first element
of the modification test: that there was a change in
circumstances substantial enough to justify a modification of
custody. We have held that "[a] change in circumstances
is unlikely to be substantial enough to 'overcome our
deep reluctance to shuttle children back and forth between
parents' unless the change affects the children's
welfare and 'reflect[s] more than mere passage of
time.' "[10] Whether changed circumstances justify
modification "is heavily fact-intensive" and
"appropriately gauged by its effect on the
child."[11] "The change in circumstances
'must be demonstrated relative to the facts and
circumstances that existed at the time of the prior custody
order that the party seeks to modify.'
"[12]
The
superior court in this case had to decide whether
circumstances had substantially changed since the first
custody agreement in 2011, [13] In deciding that they had, the
court relied on the change that prompted Darcey and Matthew
to shift custody in 2014: "[T]here ha[s] been a change
in circumstances ... that was recognized by the parties when
they agreed that [the child] would reside, at least
temporarily, with his father." It is undisputed that the
child had behavioral problems in Alaska, and both parties
agreed it would benefit him to live with Matthew in
California for several years. Matthew had also had a change
in employment that allowed for a more permanent residence,
...