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Brett M. v. Amanda M.

Supreme Court of Alaska

August 2, 2019

BRETT M., Appellant,
AMANDA M., Appellee.

          Appeal from the Superior Court of the State of Alaska No. 1JU-17-00861 CI, First Judicial District, Juneau, Louis J. Menendez, Judge.

          Gabriel E. Sassoon, Baxter Bruce & Sullivan P.C., Juneau, for Appellant.

          Kevin Higgins, Law Office of Kevin Higgins, Juneau, for Appellee.

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




         A Juneau couple with three children separated, and the mother filed for divorce. Wishing to relocate with the children to Oregon for work, she requested primary physical custody. The superior court concluded that it was in the children's best interests to relocate with the mother. The father appeals. We conclude that the superior court's custody decision is supported by the record and follows the appropriate legal framework, so we affirm.


         A. Facts

         Brett and Amanda M. married in 2006. They have three children: Jacob, Randall, and Marie.[1] Marie sees an ophthalmologist in Seattle to treat an eye condition. She has also experienced developmental delays, and an individual education program (IEP) has been created for her that includes speech and physical therapy.

         Brett and Amanda were living in Oregon when Jacob was born but moved to Juneau in 2008. They are both trained as physicians-Brett is a general surgeon and Amanda is a pediatrician - and they moved to Juneau for work. After Randall's birth they agreed that Amanda would stop practicing medicine to raise the children and that Brett would work extra hours to support the family.

         The couple separated in August 2016 when Brett moved out of the family home. The children thereafter stayed with Brett several nights a week.

         About a year after the separation, Amanda sought employment with a former colleague in Roseburg, Oregon. The former colleague offered Amanda a position in her practice in May 2018, and Amanda decided to relocate to Oregon.

         B. Proceedings

         Amanda filed for divorce in September 2017, requesting physical custody of the children. The Juneau superior court held a three-day trial in June 2018. Much of the trial concerned the legitimacy of Amanda's proposed move. Amanda testified that, to allow for more time with the children, she did not want to work full time, and that there were no suitable part-time pediatric positions available in Juneau. She explained that she was familiar with Roseburg and believed she could ease back into her medical practice there in a way that ensured she had time to spend with the children. She presented the testimony of two Juneau pediatricians to support her position about job opportunities there. Amanda's would-be Oregon colleague also testified about her practice in Roseburg.

         Brett called the director of physician services at Bartlett Regional Hospital in Juneau to rebut this testimony. Brett testified that he had alerted Amanda to three job openings while they were separated but that Amanda did not pursue them. He said that it would be difficult for him to travel to Roseburg to visit the children and that Amanda could have sought employment somewhere closer to Juneau.

         Brett also testified that during the couple's separation, there were two incidents when Amanda refused to leave the children with him after an argument, taking them out of his car and interrupting a planned custody exchange. Amanda admitted that these incidents occurred. Brett also testified that Amanda had sent him a text threatening to interrupt a trip he had planned with the children to Florida.

         At the close of testimony, the superior court issued an oral decision on the record awarding physical custody of the children to Amanda. The court first found that Amanda's proposed move to Roseburg was legitimate and not motivated by a desire to frustrate Brett's access to the children.[2] The court next addressed each statutory best interests factor in AS 25.24.150(c), [3] finding that the fifth factor - geographic and emotional stability - favored Amanda, while the remaining factors favored neither parent. Exercising its discretion under AS 25.24.150(c)(9), the court considered additional factors it deemed pertinent, finding that Brett had the resources to exercise liberal visitation, despite the distance between Roseburg and Juneau, and expressing confidence that he would continue to be involved in the children's lives.

         After trial Brett filed a motion for reconsideration, which the court denied. Brett appeals both the custody order and the denial of his motion for reconsideration.


         Brett argues that the superior court violated the law governing custody determinations and made clearly erroneous factual findings when it awarded custody to Amanda and denied Brett's motion for reconsideration. We conclude that the superior court did neither.

         A. The Superior Court Did Not Commit Legal Error.

         Brett contends that the superior court's order and its denial of his motion for reconsideration, taken together, fail to comply with the legal standards governing custody decisions. He specifically argues that (1) the superior court's findings were inadequate as a matter of law, (2) the superior court impermissibly based its decision on Amanda's primary caregiver status, and (3) the superior court did not engage in the symmetrical analysis required when one parent plans to relocate. We review de novo whether the superior court applied the correct legal standard.[4]

         1. The superior court's factual findings were adequate.

         We have explained that "[i]n reaching a final child custody determination, 'a trial court is required to make findings on the various statutory factors which are sufficient to make the basis of its decision susceptible to review.' "[5] This requirement stems from AS 25.24.150(c).[6] The court's findings "need not be extensive"[7] but must be sufficient to demonstrate which of the nine best interests factors influenced the custody decision as well as how they were weighed against each other.[8]

         The superior court here explicitly addressed each best interests factor and made clear that factors five and nine - the length of time the child has lived in a stable home and desirability of continuity, and other factors the court deems pertinent - formed the basis of its decision. These findings are sufficient for meaningful appellate review and not inadequate as a matter of law.[9]

         2. The superior court engaged in proper symmetrical analysis of best interests factor five.

         In a custody decision when one parent intends to move from Alaska, the trial court must use a two-step process to determine the children's best interests.[10] The court must first "determine whether the planned move is 'legitimate.' "[11] If the move is legitimate, the court must assume that the move will occur and engage in "symmetric consideration of the consequences to [the child] both if [the parent] leaves with [the child] and if [the parent] leaves without [the child]."[12] We have stressed that a symmetrical analysis of the fifth best interests factor is especially important and requires the court to consider both the emotional and geographic stability of the child.[13]

         The superior court found that the children would have greater geographical stability in Juneau, where they had spent their whole lives, but this was outweighed by Amanda's "ability ... to provide superior emotional stability." The court explained its reasoning further in its denial of Brett's motion for reconsideration, stating that it

understood, appreciated, and accounted for [Brett's] capacity to provide his children emotional care and support. It also considered that [Jacob, Randall, and Marie] grew up in Juneau.... The facts, however, indicated that the emotional stability [Amanda] provided was so profound and nuanced that it outbalanced the emotional and geographical stability [Brett] can provide.

         This analysis did not suffer from the same imbalance that has characterized orders reversed for failure to conduct symmetrical analysis. In Saffir v. Wheeler, for example, the superior court awarded custody to the father after finding that the mother would interfere with his ability to parent if she relocated with the child.[14] We reversed, holding that the superior court had not engaged in proper symmetrical analysis because it "did not address the impact of removing the child from her established routine or from [her mother], the parent who established it."[15] The order here was not so one-sided; it considered the effect that living with each parent, and without the other, would have on the children. The superior court properly engaged in the symmetrical analysis required by our precedent.

         3. The superior court did not impermissibly consider Amanda's primary caregiver status.

         The superior court relied heavily on its finding that Amanda had been the children's primary caregiver in its analysis of the fifth best interests factor. Brett argues that Amanda's "alleged past primary caregiver status is, as a matter of law, not adequate to support" the superior court's findings. He also suggests that whether a parent is the primary caregiver is not relevant to the fifth best interests factor.

         While Alaska law "does not automatically give a custodial preference to the primary caregiver," we have explained that "the primary caregiver inquiry may be relevant to the extent that it affects the determination of the child's 'stable, satisfactory environment and the desirability of maintaining continuity.' "[16] In fact we have explicitly stated that "[c]ourts should consider 'social and emotional factors such as who the primary caregiver was for the child'" when analyzing factor five.[17] Accordingly it was not legal error for the superior court to consider Amanda's primary caregiver status as an element in its fifth best interests factor determination. And Amanda's role as primary caregiver was not the sole basis for the court's finding; the superior court also considered her intention to limit her future work to part time and weighed the geographic and emotional stability of the children staying in Juneau with Brett against the emotional stability staying with Amanda would provide.

         B. The Superior Court's Factual Findings Are Not Clearly Erroneous.

         Brett also argues that several of the superior court's findings were clearly erroneous.[18] "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.' "[19] Brett specifically contests the findings that Amanda's move to Roseburg was legitimate, that factor one favored neither parent, that factor five favored Amanda, that factor six favored neither parent, and that additional considerations under factor nine supported ...

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