Alaska Supreme Court Opinions made Available by Touch N' Go Systems and Bright Solutions

Touch N' Go, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website.
  This site is possible because of the following site sponsors. Please support them with your business.
www.gottsteinLaw.com

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Valentino v. Cote (6/16/00) sp-5287

Valentino v. Cote (6/16/00) sp-5287

     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
                                 


LORRIE P. VALENTINO,          )
                              )    Supreme Court No. S-8971
             Appellant,       )
                              )    Superior Court No.
     v.                       )    3AN-87-12103 CI
                              )
KENNETH L. COTE,              )    O P I N I O N
                              )
             Appellee.        )    [No. 5287 - June 16, 2000]
______________________________)



          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                        Sen K. Tan, Judge.


          Appearances: Lorrie Valentino, pro se,
Anchorage.  Kenneth L. Cote, pro se, North Adams, Massachusetts.


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


          CARPENETI, Justice.


I.   INTRODUCTION
          Lorrie Valentino appeals the superior court's May 1998
decision to grant her former husband Kenneth Cote's motion to
modify child custody and transfer legal and physical custody of
their fourteen year old child, E.C., to him.  Because the trial
court did not abuse its discretion in awarding custody of E.C., we
affirm. [Fn. 1]
II.  FACTS AND PROCEEDINGS    
     A.   Facts
          Lorrie Valentino and Kenneth Cote were married in
Anchorage in 1983.  Two children were born of their marriage: E.C.
in 1984 and D.C. in 1985.  When Lorrie and Kenneth divorced in
1988, Lorrie was awarded sole legal and physical custody of both
children. 
     B.   Proceedings
          In December 1997 Kenneth filed a motion for temporary
custody, alleging that E.C. no longer wanted to live with Lorrie,
who had been physically abusive towards him.  This motion was
denied on March 23, 1998, on the grounds that no substantial change
in circumstances existed which warranted an alteration of the
existing custody arrangement. 
          In April 1998 E.C. ran away from Lorrie's home in
Anchorage to Kenneth's home in Eagle River after an altercation
with Lorrie and her live-in boyfriend, Rex Weimer.  The following
day, E.C. sought and obtained a twenty-day restraining order
against Lorrie and Rex on the grounds that Rex had attempted to
choke him.  E.C. also petitioned for a permanent restraining order
against Lorrie and Rex.  The superior court set a May 4 date for a
hearing on the petition and ordered the Division of Family and
Youth Services (DFYS) to conduct an investigation. [Fn. 2]  
          All of the parties were present at the May 4 hearing
conducted by Magistrate Andrew M. Brown.  Magistrate Brown found
that Lorrie had engaged in an act of domestic violence against E.C.
and ordered Lorrie to attend parenting classes.  Magistrate Brown
therefore extended the restraining order for another thirty days. 
          On May 6 Kenneth filed a motion to reopen and reconsider
the March 23 denial of his motion for temporary custody, alleging
that E.C. ran away from Lorrie's house and that E.C. had obtained
a restraining order against Lorrie and her boyfriend.  At the May
21 hearing on Kenneth's motion, Superior Court Judge Sen K. Tan
heard the testimony of E.C., DFYS social worker Anthony Louveau,
and several of E.C.'s teachers. 
          In an order dated August 18, 1998, Judge Tan granted
Kenneth's motion, awarding him sole legal and physical custody of
E.C.  Judge Tan specifically found that Lorrie had not physically
abused E.C. [Fn. 3] and stated that the primary basis for his
decision was the preference of E.C., whom he found to be "mature"
and "of sufficient capacity" to make a reasoned decision.  Judge
Tan also found that shared legal custody was not a viable option
given Kenneth and Lorrie's long, litigious history and conduct at
the hearing. 
          On October 31, 1998, Judge Tan entered an order reducing
Kenneth's child support obligation from $753 to $558 to reflect the
change in E.C.'s custody. [Fn. 4]  Judge Tan based this change on
1996 CSED documents, which had set Kenneth's level of support at
$753 for two children and $558 for one. 
          Lorrie promptly filed a motion to reconsider Judge Tan's
modification of Kenneth's support obligation, which led to a
December 7, 1998 order directing Kenneth to produce his current
income information.  After learning in January 1999 that Kenneth
had not received service of the motion to reconsider, Judge Tan
decided to hold this order in abeyance until Lorrie served the
motion.  Lorrie served the motion on Kenneth on January 8, 1999.
The next day, Lorrie filed her notice of appeal, thus removing
jurisdiction from the superior court before Judge Tan had an
opportunity to rule on her motion to reconsider.
          Lorrie appeals.
III. STANDARD OF REVIEW
          Trial courts are vested with broad discretion in
determining child custody issues. [Fn. 5]   We review the superior
court's decision to modify custody under the abuse of discretion
standard. [Fn. 6]  We will not reverse a trial court's resolution
of custody issues unless, after a review of the entire record, we
are convinced that the trial court abused its discretion or that
its controlling factual findings are clearly erroneous. [Fn. 7]  An
"[a]buse of discretion is established if the trial court considered
improper factors, failed to consider statutorily-mandated factors,
or improperly weighted certain factors in making its
determination." [Fn. 8]  We will hold that a factual finding made
by the trial court is clearly erroneous only if we are left "with
a definite and firm conviction that the superior court has made a
mistake." [Fn. 9] 
IV.  DISCUSSION

     A.   The Superior Court Did Not Abuse Its Discretion in 
          Granting Kenneth Custody of E.C.
          Lorrie contends that the trial court erred in granting
Kenneth's motion to modify custody for three reasons: (1) Kenneth
failed to show a significant change in circumstances since the
entry of the previous custody order; (2) the trial court improperly
allowed E.C.'s preference to be the deciding factor in its decision
to modify custody; and (3) the trial court failed to consider
Kenneth's failure to abide by prior child support orders.  We
reject each of these arguments. 
          1.   Kenneth demonstrated a significant change in
circumstances since the entry of the previous custody order.
          
          We have held that a custody modification is valid if (1)
the non-custodial parent establishes that a change in circumstances
has occurred; and (2) the modification is in the best interests of
the child. [Fn. 10]  Lorrie alleges that Kenneth did not satisfy
the former of these requirements.  
          To warrant a custody modification, the change in
circumstances must be "significant" or "substantial." [Fn. 11] 
Moreover, the requisite change in circumstances must be
demonstrated relative to the facts and circumstances that existed
at the time of the custody order that a parent seeks to have
modified. [Fn. 12]  Therefore, in order to obtain a custody
modification, Kenneth was required to show that a "significant" or
"substantial" change in E.C.'s circumstances had occurred from the
time of the previous custody order sought to be modified. [Fn. 13] 
Kenneth satisfied this burden. 
          At the hearing on Kenneth's motion for modification, the
trial court heard evidence of a number of changes in circumstances
that occurred since the trial court entered its previous custody
order.  The most important changes in circumstances were the
deterioration of the relationship between Lorrie and E.C. in the
months preceding the hearing and E.C.'s subsequent move to
Kenneth's home and his refusal to live with Lorrie. [Fn. 14] 
Together these changes clearly constituted a substantial change in
circumstances that justified a review of the existing custody
arrangement.  Accordingly, the superior court did not abuse its
discretion in deeming that Kenneth had satisfied his burden of
demonstrating a substantial change in circumstances.
          2.   The superior court did not abuse its discretion in
allowing E.C.'s preference to be the deciding factor in its
decision to modify custody.
          Lorrie argues that the superior court erred in basing its
decision to modify E.C.'s custody upon the preferences of E.C. 
Again, we disagree.
          Alaska Statute 25.24.150(c)(3) requires courts making
custody determinations to consider "the child's preference if the
child is of sufficient age and capacity to form a preference[.]" 
In addition, we have stated that trial courts should place weight
upon an older child's preferences. [Fn. 15]  In Veazey, we
suggested that while a young child's preferences are often
unreliable because he or she can be easily influenced by the
behavior of his or her parents, [Fn. 16] "a relatively mature
teenager's reasoned preference is not so lightly to be
disregarded." [Fn. 17]  
          In the present case, the superior court found that E.C.
was of sufficient age and capacity to form a preference.  After
hearing E.C.'s testimony, Judge Tan stated that he found E.C. "to
be a mature young man, of sufficient capacity to decide what he
wants."  In addition, Judge Tan stated at the close of the May 21
hearing that he felt E.C. was already making his own decisions and
that he cannot be "locked up" or forced to live with someone with
whom he does not want to live. 
          There is no evidence in the record to indicate that Judge
Tan abused his discretion in placing substantial reliance on E.C.'s
preferences.  First, E.C. is fourteen years old.  Second, Louveau
stated that he was "impressed" by E.C.'s ability to "regroup" and
"behave more maturely than his parents."  Third, the clear,
articulate, and well-reasoned nature of E.C.'s testimony at the
hearing supports Judge Tan's determination that E.C. was of
sufficient maturity to express a choice.  At the hearing, E.C.
expressed his unequivocal desire to live with Kenneth and supported
his preference with convincing, logical reasons.  He stated that he
was "doing pretty o.k." at his father's house and had a much easier
time getting along with his father because there was "no screaming
or hitting" involved in their relationship.  E.C. also stated that
he enjoyed his time at Kenneth's house, in large part because he
had an opportunity to "do more family things" with Kenneth,
Kenneth's wife, and their children than he did in Lorrie's
household. 
          E.C. also expressed a mature and realistic view about his
feelings for Lorrie and his younger brother, D.C.  At the hearing,
E.C. stated that he loved his mother and his brother and that he is
very close to his brother.  E.C. also expressed an understanding of
what his leaving Lorrie's home and moving in with Kenneth would
entail for the relationship between himself and his brother: E.C.
stated that he felt guilty about leaving D.C., but that he was
"ready to move" because he felt that it would be best for all
concerned. 
          Lorrie also alleges that the trial judge failed to
consider the possibility that E.C.'s preference resulted from
confusion caused by the heated custody battle between his parents
and the sudden attention he was receiving from Kenneth.  There is
no evidence in the record supporting this contention.  Judge Tan's
findings explicitly state that he found that E.C.'s desire to live
with his father is "voluntary and not a product of undue
influence."  In addition, the reasoned nature of E.C.'s decision,
along with his expressed feelings of love for his mother, strongly
suggest that he is making a choice based on reason rather than the
influence of Kenneth.
          3.   The superior court did not abuse its discretion in
failing to consider Kenneth's failure to obey previous child
support orders in making its custody determination.
          Alaska Statute 25.20.110(b) provides that a court making
a child custody modification determination must consider "the past
history of the parents with respect to their compliance with the
child support payment provisions of temporary or permanent support
orders or agreements relating to the child or to other children." 
Lorrie alleges that Kenneth was delinquent in his child support
payments, and argues that the trial court abused its discretion by
failing to consider this factor in making its custody modification
decision. 
          Lorrie has waived this argument because she did not raise
it at the trial level. [Fn. 18]  She did not make this argument at
the May 21 hearing and did not introduce any witnesses or evidence
to attest to Kenneth's noncompliance with previous child support
orders.  She also did not file a response to Kenneth's motion for
modification.  Lorrie accordingly failed to make this argument
either at the hearing or in a pre-trial pleading.
     B.   Lorrie's Arguments with Respect to the Superior Court's
Modification of Kenneth's Child Support Obligation Are Not Ripe.
          Lorrie argues that the superior court abused its
discretion in reducing Kenneth's child support obligation after the
custody modification was granted because the change was based on
dated income information.  We decline to consider this issue
because this aspect of Lorrie's appeal is premature.
          After Judge Tan modified Kenneth's child support
obligation, Lorrie filed a motion to reconsider.  She was later
asked by the court to serve this motion on Kenneth because he had
not received it.  Lorrie served the motion on January 8, 1999; she
filed this appeal the following day.  The trial court has not yet
had the opportunity to rule on this motion.
          Because Lorrie filed this appeal before the trial court's
thirty-day period to answer her motion to reconsider had expired,
she did not have a judgment from the superior court to appeal at
the time she filed her appeal.  This appeal is therefore premature
and this court is not the proper forum for it; [Fn. 19] the trial
court will be able to address the child support issue when it
regains jurisdiction over the case upon completion of this appeal.
[Fn. 20]
IV.  CONCLUSION
          Because the superior court did not abuse its discretion
in transferring E.C.'s custody from Lorrie to Kenneth, we AFFIRM
its decision.  


                            FOOTNOTES


Footnote 1:

     Valentino also appeals the superior court's subsequent
modification of Cote's child support; we do not reach the merits of
this issue because it is premature.  See infra Part III.C of this
opinion.


Footnote 2:

     Lorrie moved to dissolve this order on April 27; the trial
court denied her motion. 


Footnote 3:

     Judge Tan consequently vacated the restraining order against
Lorrie and her boyfriend. 


Footnote 4:

     Kenneth had initially sought $50 per month in child support
for E.C. from Lorrie.  After the superior court denied this motion
because the $50 figure did not comply with the requirements of
Alaska Civil Rule 90.3, Kenneth never sought child support from
Lorrie again; he merely petitioned the court to reduce his own
child support obligation to take into account his sole custody of
E.C. 


Footnote 5:

     See Julsen v. Julsen, 741 P.2d 642, 648-49 (Alaska 1987)
(citations omitted).


Footnote 6:

     See Acevedo v. Liberty, 956 P.2d 455, 457 (Alaska 1998)
(citation omitted).


Footnote 7:

     See Gratrix v. Gratrix, 652 P.2d 76, 79-80 (Alaska 1982)
(citation omitted).


Footnote 8:

     Id. at 80 (citation omitted).


Footnote 9:

     Siekawitch v. Siekawitch, 956 P.2d 447, 449 (Alaska 1998)
(citation omitted).


Footnote 10:

     See Nichols v. Mandelin, 790 P.2d 1367, 1372 (Alaska 1990)
(citations omitted).  These two conditions are taken directly from
AS 25.20.110(a), which provides that an award of child custody "may
be modified if the court determines that a change in circumstances
requires the modification of the award and the modification is in
the best interests of the child."  In S.N.E. v. R.L.B., 699 P.2d
875, 878 (Alaska 1985), we stated that the burden of proving the
"change in circumstances is on the moving parent."  Id. at 878.


Footnote 11:

     See Nichols, 790 P.2d at 1372.


Footnote 12:

     See id.


Footnote 13:

     The previous custody order, dated May 29, 1997, reiterated the
original 1988 custody order that was issued at the time of Lorrie
and Kenneth's divorce and granted sole legal and primary physical
custody of D.C. and E.C. to Lorrie.  We measure a change in
circumstances by examining the sum total of events that occurred in
the period between the existing custody order and the present
motion, regardless of whether intervening motions for modification
have been filed and denied.


Footnote 14:

          See Long v. Long, 816 P.2d 145, 151 (Alaska 1991)
(stating that a teenager's voluntary relocation to the noncustodial
parent's home constitutes a change in circumstances).


Footnote 15:

     See Veazey v. Veazey, 560 P.2d 382, 390 n.11 (Alaska 1977)
(overruled by statute on other grounds).


Footnote 16:

     See id. at 390.


Footnote 17:

     Id. at 390 n.11.


Footnote 18:

     See Reid v. Williams, 964 P.2d 453, 456 (Alaska 1998) ("We
will ordinarily not consider issues unless they were raised in the
trial court." (citation omitted)).


Footnote 19:

     See Alaska R. App. P. 204; Coughlan v. Coughlan, 423 P.2d
1010, 1014 (Alaska 1967) (stating that supreme court ordinarily
will not review matter being reconsidered by lower court).


Footnote 20:

     Given the amount of time that has passed since Kenneth last
provided income information and his recent change in employment,
the trial court should direct Kenneth to provide his current income
information before recalculating his child support obligation.