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B.J. v. J.D. (12/19/97), 950 P 2d 113
Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
) Supreme Court No. S-7878
) Superior Court No.
v. ) 4FA-95-1650 CI
J.D., ) O P I N I O N
Appellee. ) [No. 4921 - December 19, 1997]
Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
Jay Hodges, Judge.
Appearances: Terrence H. Thorgaard, Fairbanks,
for Appellant. Julie A. Smith, Law Office of Julie A. Smith,
Fairbanks, for Appellee.
Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.
This appeal involves a dispute between B.J. and J.D. over
the custody of V.J., B.J.'s daughter. The court awarded primary
physical custody to J.D., who is not the child's biological father,
and B.J. appeals. She argues that the superior court lacked
jurisdiction over the case and that it applied the wrong standard
in awarding custody. Because the superior court properly assumed
jurisdiction under the Uniform Child Custody Jurisdiction Act
(UCCJA) and made factual findings consistent with the "welfare of
the child"test that is applicable to a custody suit involving a
non-biological parent, we affirm. B.J. also contends that the
trial court erred in denying her motion for attorney's fees.
However, because there is no evidence that J.D. acted in bad faith
under AS 25.20.115, we conclude that the superior court's denial of
B.J.'s motion for attorney's fees was not an abuse of discretion.
II. FACTS AND PROCEEDINGS
B.J. and J.D. met in 1986. They had an intimate
relationship, sometimes living together, until 1993. V.J. was born
in Fairbanks in June 1989. At the time of V.J.'s birth, B.J. and
J.D. were not living together, although J.D. would often spend the
night at B.J.'s apartment. J.D. testified at trial that he
believed, and B.J. told him repeatedly, that he was V.J.'s
biological father. Both B.J. and J.D. helped care for V.J., and
J.D. provided financial support to B.J. and V.J.
J.D. and B.J. ended their relationship in 1993. [Fn. 1]
J.D. apparently sent V.J. to be cared for in Anchorage, but V.J.
was returned to B.J.'s custody by court order. J.D. did not see
the child for several months. He initiated a custody action in May
1993, but a court-ordered paternity test established that he was
not V.J.'s father, and the trial court dismissed the custody
In November 1993 B.J. took V.J. to Hawaii. [Fn. 2] B.J.
and V.J. apparently lived in at least five locations during their
approximately two years in Hawaii. B.J. lived with roommates and
sometimes families with whom B.J. would trade child care
responsibilities. J.D. maintained contact with V.J. through the
phone and the mail.
In February 1995 B.J. sent V.J. to J.D. for an indefinite
stay. V.J. lived in Fairbanks with J.D. for five months while B.J.
remained in Hawaii.
In July 1995 B.J. returned to Fairbanks and attempted to
regain custody of V.J. J.D. filed an action seeking legal and
primary physical custody of V.J. After hearings on interim
custody, Superior Court Judge Jay Hodges ordered a shared
alternating week custody schedule. After another series of
hearings on interim custody, Judge Hodges modified this order due
to concerns raised by a counselor and a doctor, both of whom had
Dr. Marvin Bergeson, in his report and testimony,
concluded that V.J. showed physical signs "highly suspicious for
sexual abuse." These physical signs included "a very large hymenal
opening, with the hymen being thickened, narrow, irregular." He
testified that such findings were consistent with "chronic
penetration"in the past, although not in the period immediately
preceding the examination.
The counselor, Aviva Stinson, testified that V.J.
insisted she did not want to go to her mother and that V.J. acted
strangely when the subject of her mother came up. [Fn. 3]
The superior court restricted B.J. to supervised
visitation with V.J. pending trial. Supervisors and counselors who
observed the interaction between B.J. and V.J. during these visits
later testified that the mother-daughter relationship appeared
awkward, unnatural, and unaffectionate.
A three-day trial took place in June 1996. The superior
court found that it had jurisdiction over the action. After
hearing the evidence, the court awarded shared legal custody to the
parties but concluded that V.J.'s welfare and best interest
"dictate[d] that the father [J.D.] should have physical custody."
The court found that "based on the mother's prior conduct . . .
[V.J.]'s welfare would be in jeopardy if the mother has custody."
The court expressed concern about B.J.'s "desire to meet the needs
of the child relative to any type of loving relationship,"and
concluded that B.J. "has demonstrated that she does not have the
capacity to meet"V.J.'s "physical, emotional, mental, religious
and social needs." The court, however, expanded B.J.'s visitation
rights to include unsupervised overnight visits. After two further
hearings to clarify visitation, the court signed a custody decree
on September 19, 1996. The superior court denied B.J.'s motion for
attorney's fees. B.J. appeals.
A. Did the Superior Court Have Jurisdiction under the
Uniform Child Custody Jurisdiction Act?
B.J. first challenges the superior court's assumption of
jurisdiction over this dispute. J.D. argues that B.J. waived this
argument by failing to raise the issue of jurisdiction until her
trial brief, nearly a year after J.D. commenced the superior court
Subject matter jurisdiction is generally a matter of law
that we review de novo. See Hydaburg Cooperative Ass'n v. Hydaburg
Fisheries, 925 P.2d 246, 248 (Alaska 1996). Because "subject
matter jurisdiction issues may be raised at any time during
litigation"and "jurisdiction otherwise lacking cannot be conferred
by estoppel,"the issue of subject matter jurisdiction was properly
before the superior court. O'Link v. O'Link, 632 P.2d 225, 226-27
n.2 (Alaska 1981).
Jurisdiction in custody matters is governed by the
Uniform Child Custody Jurisdiction Act. See AS 25.30.020(a). [Fn.
4] A court must determine whether jurisdiction under the UCCJA
"exists or does not exist at the time when the petition is filed
with the court." Rexford v. Rexford, 631 P.2d 475, 478 (Alaska
B.J. contends that none of the conditions for exercising
jurisdiction under the UCCJA exists. She asserts that Alaska was
not V.J.'s "home state,"that V.J. was not a child in need of aid,
and that Hawaii had jurisdiction. While J.D. concedes that Alaska
was not V.J.'s "home state"under AS 25.30.020(a)(1)(A) at the time
he filed the action, [Fn. 5] he maintains that the superior court
properly asserted jurisdiction under AS 25.30.020(a)(3). We agree.
The superior court determined that it had jurisdiction
under AS 25.30.020(a)(3), because it "appear[ed] that no other
state would have jurisdiction under prerequisites substantially in
accordance with (1) or (2) of th[e] subsection."AS
25.30.020(a)(3)(A). Neither Alaska nor Hawaii was V.J.'s home
state at the time of filing. When J.D. filed the action, B.J. did
not live in Hawaii and did not intend to return to Hawaii. Thus,
because no "parent or person acting as parent"continued to live in
Hawaii, that state could not have exercised jurisdiction.
Additionally, resolving this custody dispute in Alaska,
rather than dismissing it when no other state had jurisdiction,
appears to have been "in the best interest of the child."[Fn. 6]
AS 25.30.020 (a)(3)(B). The purposes of the UCCJA include
assur[ing] that litigation concerning the
custody of a child takes place ordinarily in the state with which
the child and the child's family have the closest connection and
where significant evidence concerning the child's care, protection,
training, and personal relationships is most readily available.
AS 25.30.010(3). [Fn. 7] The UCCJA is also designed to "discourage
continuing controversies over child custody in the interest of
greater stability of home environment and of secure family
relationships for the child." AS 25.30.101(4). Both of these
policy considerations weigh in favor of the superior court's
assertion of jurisdiction in this case.
We affirm the superior court's assumption of jurisdiction
under AS 25.30.020(3). No other state would have had jurisdiction
of the case under the UCCJA at the time the action was filed, and
it was in V.J.'s best interest for Alaska to exercise jurisdiction
over this matter.
B. Did the Superior Court Abuse Its Discretion in Awarding
Custody of V.J. to J.D.?
1. Standard of review
We will only reverse the superior court's determination
of child custody issues if we are satisfied that
the record shows an abuse of discretion or if
the controlling factual findings are clearly erroneous. Abuse of
discretion is established if the trial court considered improper
factors or failed to consider statutorily mandated factors, or
improperly weighted certain factors in making its determination.
McQuade v. McQuade, 901 P.2d 421, 424 n.9 (Alaska 1995) (citations
and quotations omitted).
2. "Welfare of the child"is the correct test to apply
where custody could be awarded to a person other than the
B.J. argues that the superior court failed to apply the
"welfare of the child"test articulated in Turner v. Pannick, 540
P.2d 1051 (Alaska 1975) in awarding custody of V.J. to J.D., who is
neither a biological parent nor a stepparent.
In Turner v. Pannick, we held that an award of custody to
a natural parent is "preferable and only to be refused where
clearly detrimental to the child." Id. at 1055. We identified
only three circumstances under which a superior court may award
custody to a person other than the biological parent: (1) when the
biological parent is unfit; (2) when the biological parent has
abandoned the child; and (3) when the welfare of the child requires
that a non-parent receive custody. Id. We have reaffirmed these
principles in Britt v. Britt, 567 P.2d 308, 310 (Alaska 1977),
Buness v. Gillen, 781 P.2d 985, 988-89 (Alaska 1989), and Rooney v.
Rooney, 914 P.2d 212, 216 n.8 (Alaska 1996).
J.D. argues that the preference for natural parents
established by Turner does not apply to this case and relies on
Carter v. Brodrick, 644 P.2d 850 (Alaska 1982) to support this
contention. Carter, however, did not hold that a biological parent
is not preferred over a third party who stands in loco parentis to
the child in the determination of custody. Rather, it dealt only
with visitation, not custody, and involved a stepfather (the
natural mother's former husband), not an unrelated third party.
Id. at 855. Indeed, in Carter, we expressly reaffirmed Turner,
stating that a court "would have jurisdiction to award custody of
a stepchild to the stepparent if the court found that custody with
the natural parent would be clearly detrimental to the child." Id.
We therefore apply the "welfare of the child"test in this case.
B.J. argues that the superior court incorrectly applied
the "welfare of the child"test by failing to find that awarding
custody to B.J. would be clearly detrimental to V.J. We disagree.
A careful review of the superior court's oral findings and written
custody decree reveals that the superior court made adequate
findings consistent with the standard we prescribed in Turner.
The superior court based its oral finding that "[V.J.]'s
welfare would be in jeopardy if the mother has custody,"upon the
evidence adduced at trial. The superior court relied on testimony
regarding B.J.'s inability to provide a stable home environment or
meet her daughter's needs.
The trial court heard testimony that B.J. lived a
transient lifestyle while in Hawaii between 1993 and 1995. During
that time she and her daughter resided at five different addresses,
usually shared with other families or individuals who would take
responsibility for caring for V.J. B.J. admitted at trial that she
was unable to provide a stable life for V.J. during the time they
were in Hawaii. [Fn. 8] These facts led the court to conclude that
"Hawaii was really not an acceptable place under the circumstances
for [V.J.],"that "she has lived in an unstable, chaotic
situation,"and that "based on the mother's prior conduct . . .
[V.J.]'s welfare would be in jeopardy if the mother has custody."
Furthermore, the testimony of medical experts and
counselors suggested that V.J. had been sexually abused while in
Hawaii under her mother's care. Although the superior court found
that B.J. was neither aware of nor directly involved in the sexual
abuse, the court was clearly concerned about the "child's adverse
reaction,"and found that "her welfare is best served by physical
custody in [J.D.]."
The court also addressed B.J.'s inability to provide for
the physical, emotional, mental, religious and social needs of V.J.
The court's finding that B.J. "has demonstrated that she does not
have the capacity to meet those needs"is consistent with the
evidence in the record. Testimony from persons who supervised
B.J.'s visitations in Fairbanks, a custody investigator, and
counselors observing interactions between B.J. and V.J., all
indicated that the mother-daughter relationship was unaffectionate
and awkward. The testimony further suggested that B.J. at times
acted inappropriately towards her child, on one occasion slapping
V.J.'s forehead and pulling her ears, while on another striking
V.J. with a closed fist while tussling with a visitation
supervisor. According to the testimony at trial, B.J. also
admitted to the custody investigator that she had difficulty
disciplining V.J. and wanted and needed help caring for her. The
superior court also considered testimony that V.J. was reluctant to
visit B.J. unaccompanied or converse with her on the phone. In its
oral and written findings, the court noted V.J.'s "concerns
regarding her mother,"and concluded that it would "not be in
[V.J.]'s welfare or interests to return physical custody to [B.J.]"
The professionals who testified at trial also challenged
B.J.'s judgment as a parent [Fn. 9] and expressed concern that if
she were awarded custody, V.J.'s "future will be gone." The court
echoed this sentiment by questioning B.J.'s "desire to meet the
needs of the child relative to any type of loving relationship."
Troubled by B.J.'s plans to go to South Carolina [Fn. 10] and her
transient lifestyle in general, the court commented, "[t]here is
some indication that [B.J.] . . . is not aware of the necessity of
the type of relationship that should exist between [J.D.] and
The superior court appropriately applied the Turner
standard and concluded that "it would not be in [V.J.'s] welfare .
. . to return physical custody to [B.J.],"and that "[V.J.]'s
welfare would be in jeopardy if the mother had custody." In light
of these findings, which are substantiated by the record, we
conclude that the trial court did not abuse its discretion "by
consider[ing] improper factors or fail[ing] to consider
statutorily-mandated factors, or improperly weight[ing] certain
factors in making its determination." McQuade, 901 P.2d at 424 n.9
(citations omitted). Therefore, we affirm the superior court's
award of custody to J.D.
C. Did the Superior Court Err in Denying B.J.'s Motion for
B.J. argues that she was entitled to attorney's fees and
maintains that the superior court should have considered the
"relative economic situations and earning powers of the parties
when deciding whether to grant or deny her motion." Lone Wolf v.
Lone Wolf, 741 P.2d 1187, 1192 (Alaska 1987) (approving exception
to Alaska Civil Rule 82 in cases of divorce). J.D. contends that
this limited exception to the rule of prevailing party attorney's
fees is inapplicable. He contends that AS 25.20.115 governs the
award of attorney's fees resulting from an action to modify,
enforce or vacate a child custody award.
The decision of which statute or rule applies to an award
of fees presents a question of law. The standard of review on
questions of law is de novo or independent review. See Langdon v.
Champion, 752 P.2d 999, 1001 (Alaska 1988).
The rule upon which B.J. relies is not applicable because
the instant action did not involve the dissolution of a marriage.
We have previously held that the divorce exception to Civil Rule 82
"is based on a broad reading of AS 25.24.140(a)(1) [pertaining to
an interim award of attorney's fees in divorce cases] . . . , and
on the reality that there is usually no prevailing party in a
divorce case." L.L.M. v. P.M., 754 P.2d 262, 264 (Alaska 1988).
Neither of these reasons applies here because this is not a divorce
case and J.D. was clearly the prevailing party.
In Bergstrom v. Lindback, 779 P.2d 1235, 1238 (Alaska
1989), we applied the "divorce exception"to a custody dispute
between an unmarried couple both of whom were biological parents of
the child. The present case is distinguishable in many respects.
It concerns the rights of a biological parent in relation to those
of a non-biological parent. Although the parties in Bergstrom had
never been married, they had been living together as husband and
wife for fourteen years, and the custody dispute litigated there
was closely analogous to custody disputes in divorce cases. Here,
by contrast, J.D. filed this action more than three years after the
parties had voluntarily ended their relationship and after the
trial court had dismissed a lawsuit by J.D. seeking custody as a
biological parent. The present case does not bear the same close
resemblance to an initial custody proceeding in a divorce action as
J.D. argues that the circumstances of this case are more
akin to the modification of a custody award than to a divorce
action. Alaska Statute 25.20.115 provides
[i]n an action to modify, vacate, or enforce
that part of an order providing for custody of a child or
visitation with a child, the court may, upon request of a party,
award attorney fees and costs of the action. In awarding fees and
costs under this section, the court shall consider the relative
resources of the parties and whether the parties have acted in good
Although by its terms the statute applies only to actions
to "modify, vacate and enforce"child custody and visitation
awards, we conclude that it is applicable to the present case. In
J.D.'s initial action to gain custody of V.J., filed when he still
believed himself to be her natural father, Superior Court Judge Jay
Hodges entered a temporary order regarding visitation. J.D. was
granted visitation rights, but B.J. was given physical custody of
V.J. and the authority to take her to Hawaii on the condition that
she return for the start of trial later the following year. When
the paternity test established that J.D. was not the biological
father, the court dismissed J.D.'s complaint and custody of V.J.
remained with B.J. By filing his 1995 complaint and expedited
motion for temporary orders, J.D. attempted to modify the substance
of the court's earlier custody order and the status quo.
Therefore, AS 25.20.115 governs J.D.'s efforts to regain custody of
With respect to modification of custody and visitation
orders, we review the denial of a motion for attorney's fees for
abuse of discretion. See Kessler v. Kessler, 827 P.2d 1119, 1120
n.4 (Alaska 1992). In addressing attorney's fees under AS
25.20.115 the court must consider the parties' relative economic
situations, as well as whether they have acted in good faith. "The
parties' relative financial resources do not necessarily take
primacy over the presence or absence of good faith." S.L. v. J.H.,
883 P.2d 984, 985-86 (Alaska 1994). B.J. failed to allege at
anytime during the proceedings below or in her points on appeal
that J.D. acted in a vexatious manner or in bad faith. Thus, the
superior court did not abuse its discretion by denying B.J.'s
motion for attorney's fees.
We AFFIRM the trial court's assumption of jurisdiction,
its award of primary physical custody to J.D., and its denial of
B.J.'s motion for attorney's fees.
According to J.D., he continued to support both B.J. and V.J.
financially from 1993 onward, paying medical and dental bills,
covering B.J.'s rent when she was unable to pay it, and
reconnecting B.J.'s phone when she failed to pay her bills so that
he could stay in touch with V.J.
B.J.'s brief states, without record support, that she moved to
Hawaii in "early 1993." However, B.J. testified at trial that she
moved at "the end of November"in 1993.
Stinson, in later testimony, discussed her observations of
V.J. and concluded that there was no doubt in her mind that she had
been sexually abused.
Alaska Statute 25.30.020(a) provides:
The superior court has jurisdiction to make a
child custody determination by initial or modification decree if
the conditions set out in any of the following paragraphs are met:
(1) this state (A) is the home state of
the child at the time of commencement of the proceeding, or (B) had
been the child's home state within six months before commencement
of the proceeding and the child is absent from this state because
of removal or retention by a person claiming custody or for other
reasons, and a parent or person acting as parent continues to live
in this state; or
(2) the child is physically present in
this state and is a child in need of aid as defined in AS
(3) it (A) appears that no other state
would have jurisdiction under prerequisites substantially in
accordance with (1) or (2) of this subsection, or another state has
declined to exercise jurisdiction on the ground that this state is
the more appropriate forum to determine the custody of the child,
and (B) is in the best interest of the child that this court assume
The UCCJA defines the term "home state"as "the state in which
the child, immediately preceding the time involved, lived with the
child's parents, a parent, or a person acting as parent, for at
least six consecutive months." AS 25.30.900(5). The phrase
"person acting as parent"is defined as "a person, other than a
parent, who has physical custody of a child and who has either been
awarded custody by a court or claims a right to custody." AS
25.30.900(9). Finally, the act defines "physical custody"as
"actual possession and control of a child." AS 25.30.900(8).
Because J.D. had "actual possession and control"of V.J. and
"claim[ed] a right to custody"at the time he filed the action, he
was a "person acting as parent"under the UCCJA. However,
according to the testimony at trial, V.J. arrived in Fairbanks from
Hawaii sometime in February 1995. J.D. filed his action on July
24, 1995, after V.J. had been in Fairbanks for at most five months
and about three weeks.
We note for the purpose of clarity that the "best interest of
the child"is being considered solely with respect to jurisdiction
and not as the basis for awarding custody in matters involving a
The superior court found that the "primary witnesses involved
in this case are here in Alaska in the Fairbanks area"and
concluded that Hawaii would be an inappropriate forum "[u]nder the
facts and circumstances of this case, particularly where [B.J.] has
indicated she doesn't even want to go back to Hawaii."
B.J. continued to have difficulty securing housing when she
returned to Fairbanks. By the start of trial, she had lived in at
least seven different places. Additionally, J.D. testified that he
usually had to cover B.J.'s expenses when she received eviction
notices or was unable to pay rent.
Other witnesses testified about B.J.'s lack of parenting
skills, alluding to a number of instances in which young children,
including V.J., were permitted to stay in the room while adults
were viewing pornographic films.
B.J. intended to seek support in raising V.J. from her family
in South Carolina. The custody investigator testified that he was
concerned about that plan because B.J. had been physically abused
by her adoptive parents, and because her contact and relations with
her 19 siblings and adoptive parents were not current.