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Geldermann v. Geldermann

Supreme Court of Alaska

August 31, 2018

DARCEY GELDERMANN, Appellant and Cross-Appellee,
v.
MATTHEW GELDERMANN, Appellee and Cross-Appellant.

          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, ...


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