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Gaston v. Gaston (2/20/98), 954 P 2d 572


     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
                                 

SAMUEL MYRL GASTON,           )
                              )    Supreme Court No. S-8057
             Appellant,       )
                              )    Superior Court No.
     v.                       )    3AN-94-8459 CI
                              )
SUSAN TOWLE HANSON GASTON,    )    O P I N I O N
                              )
             Appellee.        )    [No. 4950 - February 20, 1998]
______________________________)



          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                   Michael L. Wolverton, Judge.


          Appearances: William T. Ford, Anchorage, for
Appellant.  Peggy A. Roston, Anchorage, for Appellee.


          Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.  


          FABE, Justice.


I.   INTRODUCTION
          This appeal concerns a dispute between Samuel and Susan
Gaston over child visitation privileges.  The Gastons signed a
custody agreement that allowed them to change the physical custody
arrangement after one year.  The custody agreement also provided
that if the Gastons disagreed on proposed changes, they could seek
mediation or court modification.  Nine months after they signed the
agreement, the Gastons adopted a slightly modified visitation
schedule.  Approximately one year later, Susan decided that the new
arrangement was not in the children's best interests and informed
Samuel that she wanted to return to the original schedule.  Because
Samuel wanted to retain the new visitation schedule, he filed a
motion in the superior court requesting mediation or court
modification, as provided for in the custody agreement.  The
superior court denied Samuel's request, ruling in part that the
agreement's mediation provision had lapsed.  Because we conclude
that Susan was estopped from arguing that the provision had lapsed,
we reverse. 
II.  FACTS AND PROCEEDINGS
          Samuel and Susan Gaston married in March 1985 and
divorced in October 1994.  Prior to the entry of their divorce, the
Gastons signed a child custody agreement that determined the
custody of their two children, James, born in April 1989, and
Charlotte, born in June 1986.
          Pursuant to the agreement, Samuel and Susan had joint and
shared legal custody of the children.  Although Susan received
primary physical custody of James and Charlotte, the visitation
schedule provided that the children would spend alternating
weekends, from Friday evening to Sunday evening, with Samuel.  In
addition, James and Charlotte were to spend one overnight during
the week with Samuel when they did not spend the previous weekend
with him.  The agreement did not specifically provide for summer
visitation with Samuel, nor did it grant Samuel the right of first
refusal on child care.  
          Section 2 of the agreement granted the parents the
opportunity to revise the physical custody arrangement at the end
of one year.  Section 2 provides in relevant part: 
          The parties agree to meet at the end of one
year from the date of this Agreement to determine if the physical
custody arrangement set forth below is still in the best interests
of the children.  If the parties cannot agree, then either party
may seek mediation or file a motion in court seeking modification. 
If no action is taken by neither [sic] party, then the below
schedule will remain in effect. 

(Emphasis added.)  The divorce decree incorporated the custody
agreement by reference.
          In July 1995, nine months after the custody agreement was
signed, Susan agreed to extend the children's visits on the
weekends until Monday morning.  The parties disagree on whether
they intended this modification to be permanent.  In any case, the
Sunday overnights continued from July 1995 until the late spring or
summer of 1996, [Fn. 1] when Susan informed Samuel that she wanted
to return to the original schedule.  Samuel objected, and the
parties could not resolve this issue themselves. 
          Because Susan sought to return to the original visitation
schedule over his objection, Samuel invoked the dispute resolution
provision of Section 2 and filed a motion in superior court
requesting mediation or modification of the agreement.  In his
motion, Samuel primarily sought to maintain the Sunday overnight
visitation schedule. [Fn. 2]  Samuel implied in the affidavit
supporting his motion that he had not sought mediation or
modification of the agreement in October 1995, as provided in
Section 2, because he felt that the parties had modified the
agreement themselves by adopting the new visitation schedule.
          Susan opposed Samuel's motion, arguing that neither
mediation nor court modification was proper under the
circumstances.  Susan first argued that the court should deny
Samuel's motion for modification because he had failed to meet his
threshold burden of showing a change in circumstances.  Next, Susan
contended that Samuel's right to mediate pursuant to Section 2 had
expired.  She claimed that the right to mediate vested only if the
parties were unable to agree on how to modify the visitation
schedule at the October 1995 meeting.  Susan argued that because
the parties had not met in October 1995, the condition precedent to
invoking the right to mediate had not occurred.  In addition, she
claimed that she had never agreed to modify the original agreement
and had permitted the Sunday overnights on a trial basis only.
          The superior court denied Samuel's motion.  Concluding
that the language of the agreement allowed the parties to seek
mediation only within one year of its signing, or in October 1995,
the court ruled that it would be inequitable to allow Samuel to
compel Susan to mediate in August 1996, almost one year after the
mediation provision had expired.  The court also denied Samuel's
request for modification of the custody arrangement, ruling that
neither the adoption of the Sunday overnights on a trial basis nor
the return to the original schedule constituted a material change
in circumstances.  Samuel appeals.
III. DISCUSSION     
     A.   Standard of Review
          Although we ordinarily review a superior court's decision
regarding a motion to modify for an abuse of discretion, see
Kessler v. Kessler, 827 P.2d 1119, 1119 (Alaska 1992), the dispute
between the parties in this case stems from their differing
interpretations of the child custody agreement they signed.  As a
result, we review the superior court's interpretation of the
agreement as we would review its interpretation of any other
contract, de novo.  See Davis v. Dykman, 938 P.2d 1002, 1006
(Alaska 1997); see also Vachon v. Pugliese, 931 P.2d 371, 375
(Alaska 1996).
     B.   Did the Trial Court Correctly Interpret the Custody
Agreement?
          
          Preliminarily, we note that the superior court correctly
applied a contractual analysis in interpreting the custody
agreement between Samuel and Susan.  Settlement agreements should
be interpreted as contracts provided that they meet minimal
contractual requirements.  See, e.g., Davis v. Dykman, 938 P.2d
1002, 1006 (Alaska 1997); see also Singh v. State Farm Mut. Auto.
Ins. Co., 860 P.2d 1193, 1199 (Alaska 1993). 
          Samuel argues that he should now be able to invoke the
dispute resolution clause of Section 2 because his failure to do so
in October 1995 stemmed from his reliance on Susan's agreement to
the Sunday overnights.  We agree.
          The language of Section 2 suggests that the custody
agreement was provisional and could be revised by the parents if
either parent was dissatisfied with it at the end of one year.  In
addition, Section 2 provided that if the parents could not revise
the agreement themselves, mediation or court modification would be
available.  In this case, Samuel and Susan agreed to try a new
visitation schedule in July, thus making it unnecessary for either
parent to seek mediation or court involvement in October. [Fn. 3]
          Relying on Susan's agreement to the Sunday overnights,
Samuel did not exercise his option to seek mediation or court
modification in October 1995.  Because Samuel reasonably relied on
Susan's representation to his detriment, Susan is now estopped as
a matter of law from relying on the one-year time limit as a basis
for refusing to abide by the dispute resolution provision. [Fn. 4] 
See K.E. v. J.W., 899 P.2d 133, 134 (Alaska 1995) (setting out the
elements of equitable estoppel as "(1) representation of a position
by conduct or word, (2) reasonable reliance thereon by another
party, and (3) resulting prejudice").  We therefore conclude that
the superior court erred in denying Samuel's motion in its
entirety.
          Samuel requested mediation of his dispute with Susan or
modification of the custody arrangement in his motion to the
superior court.  However, in the body of his motion and in his
affidavit, Samuel expressed a preference for mediation. [Fn. 5] 
Under the parties' agreement, if one party sought mediation the
other was bound to mediate.  Given the parties' agreement, the
superior court should have ordered mediation. [Fn. 6]  
          Further, we take this occasion to endorse broader use of
mediation in child custody and visitation matters.  Mediation
offers parents multiple benefits.  In general, "[i]nstead of
pitting one parent against the other"in the adversarial atmosphere
of the courtroom, mediation encourages parents "to solve their
mutual problem, which is how to optimize the time their children
share with each of them."  Donald T. Saposnek, Mediating Child
Custody Disputes 19 (1983).  In particular, mediation expands the
variety of possible resolutions to custody disputes because the
parents are free to agree to more creative arrangements than those
that might be adopted by a trial court.  See id.  Additionally, one
commentator has pointed out that parents' satisfaction with the
mediation process leads to what he terms a low rate of
"recidivism": in one program "fewer than 10% of mediated cases were
officially reopened within the first year after mediation."  See
Jeff Atkinson, Modern Child Custody Practice sec. 2.03, at 50
(1986)
(footnote omitted).
          Most importantly, resolving custody and visitation
disputes through mediation rather than through an adversarial
process benefits the children who are the subject of disputes
between their parents.
          [These] benefits include [fostering] increased
chances for continued cooperation and communication between the
parents, reduction of ongoing conflict as a result of both parents
perceiving themselves to be on the same side, and an attitude of
mutual flexibility in problem solving. 

Saposnek, supra, at 19.  By increasing the potential for
cooperation between parents, mediation decreases the potential for
continuing parental strife in a child's life.
IV.  CONCLUSION
          We REVERSE and REMAND to the superior court for an order
requiring the parties to mediate the visitation issues raised in
Samuel's motion for mediation/modification. [Fn. 7]


                            FOOTNOTES


Footnote 1:

     The parties dispute the exact month that Susan informed Samuel
that she no longer approved of the Sunday overnights.


Footnote 2:

     Samuel also requested additional visitation during the summer
and the right of first refusal on child care.


Footnote 3:

     Even if Susan clearly informed Samuel of her desire to try the
changed visitation schedule on an experimental basis only, Samuel
could have reasonably concluded that the October 1995 deadline for
requesting mediation or modification of custody would be extended
for the duration of the experiment, in order to allow both parties
to decide if the new schedule would be acceptable on a more
permanent basis.


Footnote 4:

     Alaska's family law encourages custodial parents to be
flexible in experimenting with visitation schedules, and in most
cases parents should feel free to end such experiments if they
conclude that they are not working.  See Garding v. Garding, 767
P.2d 183, 185 (Alaska 1989) (stating that in codifying the change
in circumstances doctrine, the state legislature "expressly found
'that it is in the best interests of a child to encourage parents
to implement their own child care agreements outside of the court
setting.'") (quoting Ch. 88, sec. 1(b) SLA 1982).  Our decision in
this case that Susan should not be able to revoke her agreement to
a change in the visitation schedule without entering mediation is
based on the unique language of the custody agreement she and
Samuel signed. 


Footnote 5:

     In his motion, Samuel wrote: "The parties' previous agreement
called for the appointment of a mediator in the event of
disagreement.  This appears to be a good method to expedite[]
resolution of this matter."  Similarly, Samuel's affidavit states:
"Inasmuch as our original custody agreement provided for the
appointment of a mediator, I believe that this should be done by
the court at the earliest possible time . . . ."


Footnote 6:

     Due to our decision that Samuel's request for mediation should
have been granted, we need not consider whether the trial court
could have modified the agreement absent a change in circumstances
given Section 2's implication that the agreement was provisional.


Footnote 7:

     Although Susan and Samuel did not discuss summer visitation or
the right of first refusal on child care in July 1995, we conclude
that these issues would also be appropriately addressed in
mediation.  Samuel could have reasonably concluded that he and
Susan would resolve these other issues cooperatively, as they had
the Sunday visitation issue, thereby rendering resort to the
agreement's formal procedures unnecessary.